NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 22, 2015*
Decided September 25, 2015
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 14-‐‑2516 Appeal from the United
States District Court for the
JOSE BANKS, Northern District of Illinois,
Plaintiff-‐‑Appellant,
Eastern Division.
v.
No. 14 C 3836
UNITED STATES OF AMERICA, Elaine E. Bucklo, Judge.
Defendant-‐‑Appellee.
Order
Jose Banks escaped from the Metropolitan Correctional Center in Chicago, where he
had been confined pending his sentencing for bank robbery. After being captured,
Banks filed this suit under the Federal Tort Claims Act, 28 U.S.C. §§ 2671–80, contend-‐‑
ing that the United States was negligent in allowing him to escape. (Banks’s complaint
also named approximately 70 federal employees, but none was served with process.
The United States itself is the only proper defendant under the FTCA, so we omit the
* After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 14-‐‑2516 Page 2
individual defendants from the caption and do not discuss them further.) The district
court screened the complaint and dismissed it as frivolous. The judge also denied
Banks’s motion to file an amended complaint.
While this suit was on appeal, Banks was sentenced, and his sentence was enhanced
(for obstruction of justice) on account of the escape. The United States now asks us to
hold that the suit is premature under Heck v. Humphrey, 512 U.S. 477 (1994), because
Banks’s contentions are incompatible with the validity of his sentence. It is not clear to
us that Heck applies to sentence enhancements as opposed to convictions. Nor is it clear
that there is any inconsistency. Banks contends in this suit that the United States should
have done more to prevent his escape, but even walking away from an unguarded
compound can constitute the crime of escape. Indeed, because escape is a continuing
offense, it can be committed by failure to return to prison following a departure. See
United States v. Bailey, 444 U.S. 394 (1980). At all events, Banks filed and lost this suit be-‐‑
fore he was sentenced for the bank robberies. The suit was not premature when filed or
decided, and it would be perverse to use Banks’s subsequent sentencing to give him an-‐‑
other shot at a tort suit some years in the future.
On the merits, the district court was right: This suit is frivolous. No one has a per-‐‑
sonal right to be better guarded or more securely restrained, so as to be unable to com-‐‑
mit a crime. Cf. DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189 (1989);
Hoffa v. United States, 385 U.S. 293, 310 (1966) (“There is no constitutional right to be ar-‐‑
rested.”). And even if there were such a right, choosing the tradeoff between security
and cost of incarceration is a discretionary function outside the scope of the FTCA. See
28 U.S.C. §2680(a). Banks gets credit for chutzpah, but that is not a basis of damages.
The proposed amended complaint was as frivolous as the original, and the district court
properly declined to entertain it.
Both the suit and the appeal count as “strikes” for the purpose of 28 U.S.C. §1915(g).
We give Banks 14 days to show cause why we should not impose sanctions for this
frivolous appeal. See Fed. R. App. P. 38.