                           NONPRECEDENTIAL DISPOSITION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 July 17, 2008*
                                  Decided August 4, 2008

                                           Before

                               JOEL M. FLAUM, Circuit Judge

                               DIANE P. WOOD, Circuit Judge

                               DIANE S. SYKES, Circuit Judge

No. 07-1089
                                                    Appeal from the United States
GREGORY D. ROBINSON,                                District Court for the
    Plaintiff-Appellant,                            Central District of Illinois.

       v.                                           No. 06 C 1067

OFFICER HINMAN,                                     Harold A. Baker,
     Defendant-Appellee.                            Judge.



                                         ORDER

       Gregory Robinson is a federal prisoner who filed a complaint alleging that
Correctional Officer Hinman subjected him to cruel and unusual punishment by leaving
him unsupervised for 30 minutes with three other inmates who attacked and beat him until
he required emergency medical treatment. See Bivens v. Six Unknown Agents of Fed. Bureau
of Narcotics, 403 U.S. 388 (1971). Robinson continues to suffer from impaired vision, muscle


       *
          After examining the briefs and the record, we have concluded that oral argument
is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP.
P. 34(a)(2).
No. 07-1089                                                                              Page 2

spasms, and numbness in his face as a result of the attack. The district court dismissed
Robinson’s complaint upon initial screening for failure to state a claim. See 28 U.S.C.
§ 1915A. We vacate and remand.

         The procedural history of this case is troubling. On March 3, 2006, before filing his
complaint, Robinson filed a “Petition to preserve documentary evidence before the
commencement of a civil action” in which he asked the district court to order officials at the
prison where he is incarcerated to preserve videotaped evidence of the attack. See FED. R.
C IV. P. 27(a). Robinson explained that he intended to bring a claim under Bivens and the
Federal Tort Claims Act, see 28 U.S.C. §§ 1346(b) & 2674, but was unable to file a lawsuit in
federal court at that time because he was still exhausting his administrative remedies under
the FTCA, see 28 U.S.C. § 2675(a). According to Robinson, the entire October 4, 2005 attack
was recorded by the prison’s security camera, but the tape was scheduled to be recycled
pursuant to the prison’s policy of storing such surveillance footage for only six months.
Robinson also submitted a copy of a disciplinary report issued against him as a result of the
fight.

        The district court granted Robinson’s petition and ordered prison staff to preserve
the evidence. The district court also told Robinson on June 7, 2006, that he had only
21 days to file his complaint. If he did not file his complaint within that time, the court told
him his petition to preserve evidence would be dismissed. The court’s deadline ignored
the statute of limitations; the two-year period for bringing a Bivens action would have
extended at least until October 2007, see, e.g., Myles v. United States, 416 F.3d 551, 552 (7th
Cir. 2005); Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir. 2002), and Robinson had six
months after the Bureau of Prisons denied his administrative claim (which the Bureau had
not yet done) in which to file a tort action, see 28 U.S.C. § 2401(b); McNeil v. United States,
508 U.S. 106, 109 n.4 (1993).

       On June 28, 2006, Robinson responded with a “Motion to hold suit in abeyance” and
an attached complaint. His motion indicated that he wanted to bring a negligence claim
but was still unable to do so because prison officials had “yet to respond or acknowledge
receipt of [the] administrative claim” under the FTCA. As a result, Robinson advised the
court that he was “skeptical about submitting this complaint.” Robinson also reminded the
court that the statute of limitations on his Bivens claim was two years and asked the court to
hold his entire suit in abeyance until his administrative case was resolved in the prison
system and he was able to amend his complaint to add the negligence claim. The court
denied Robinson’s motion and dismissed his complaint.
No. 07-1089                                                                             Page 3

       Our review of a dismissal under § 1915A for failure to state a claim is de novo.
Westefer v. Snyder, 422 F.3d 570, 574 (7th Cir. 2005). The district court’s directive and
Robinson’s response suggest that Robinson filed his Bivens complaint only as a placeholder,
in response to the court’s sua sponte deadline, because he feared the district court would
permit prison officials to destroy the evidence he needed to pursue his intended claim, a
negligence action under the FTCA. In effect, Robinson wanted all along to bring a
negligence suit but was forced into bringing a potentially frivolous Bivens action because
his FTCA claim would have been premature. See McNeil, 508 U.S. at 109.

        We conclude that the district court erred when it required Robinson to file a
complaint within 21 days, effectively moving up the statute of limitations and creating an
impossible situation for a prisoner who was dependent on the prison-review system for
proper exhaustion. Robinson’s petition to preserve evidence was an entirely legitimate
request given the circumstances, see Nissei Sangyo Am., Ltd. v. United States, 31 F.3d 435, 440
(7th Cir. 1994); Deiulemar Compagnia di Navigazione v. M/V Allegra, 198 F.3d 473, 484 (4th Cir.
1999), and his decision to invoke Rule 27 did not give the district court authority to then
compel Robinson to file his planned lawsuit prematurely. We therefore VACATE the order
dismissing Robinson’s complaint and REMAND for further proceedings consistent with
this order. The district court shall permit Robinson to amend his complaint to flesh out the
allegations of his Bivens claim and, if feasible at this time, to add his FTCA claim. The
district court shall also ensure that prison officials do not destroy the videotaped evidence
until both the constitutional and statutory claims have been fully litigated.
