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Barker v. McPherson

United States District Court, S.D. Indiana, Terre Haute Division

October 9, 2014

STEVEN L. BARKER, Plaintiff,
v.
LT McPHERSON, LT. EMMERICH, SENIOR OFFICER BOBO, and UNITED STATES OF AMERICA Defendants.

ENTRY ON DEFENDANTS' PARTIAL MOTION TO DISMISS

WILLIAM T. LAWRENCE, District Judge.

This cause is before the Court on Defendants' motion to dismiss certain claims in Plaintiff's amended complaint (dkt. no. 78).[1] The motion is fully briefed, and the Court, being duly advised, GRANTS the motion, for the reasons set forth below.

I. STANDARD

In reviewing a Federal Rule of Civil Procedure 12(b)(6) motion, the Court "must accept all well pled facts as true and draw all permissible inferences in favor of the plaintiff." Agnew v. National Collegiate Athletic Ass'n, 638 F.3d 328, 334 (7th Cir. 2012). For a claim to survive a motion to dismiss for failure to state a claim, it must provide the defendant with "fair notice of what the... claim is and the grounds upon which it rests." Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007) (omission in original). A complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Agnew, 638 F.3d at 334 (citations omitted). A complaint's factual allegations are plausible if they "raise the right to relief above the speculative level." Bell Atlantic Corp v. Twombly, 550 U.S. 544, 556 (2007).

II. BACKGROUND

On November 22, 2010, pro se Plaintiff Steven L. Barker filed suit alleging excessive force and related claims against the Bureau of Prisons ("BOP"), Lt. McPherson, Lt. Emmerich, Senior Officer Bobo, SIA Jaeger, and 100 anonymous correctional officers pursuant to Bivens v. Six Unkonw Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In his complaint, Barker alleged, in part, that Lt. Emmerich used excessive force against him in violation of his Eight Amendment rights. Compl. at 11. He further alleged that Lt. McPherson, Officer Bobo, and SIA Jaeger falsified documents, committed assault and battery, conspired to cover up the incident with Lt. Emmerich, and/or were deliberately indifferent to Lt. Emmerich's use of excessive force and Barker's medical needs.[2]

On November 16, 2011, the claims against the BOP and the 100 anonymous correctional officers were deemed "legally insufficient" and dismissed from the suit. Dkt. No. 13 at 1. Thereafter, the remaining Defendants filed a motion for summary judgment. On July 25, 2013, the Court granted in part and denied in part the Defendants' motion, ruling as follows:

[T]he motion for summary judgment [Dkt. 31] is granted as to all claims asserted against Jaeger. The motion for summary judgment [Dkt. 31] is also granted as to the claims of falsifying documents, assault and battery, conspiracy, and deliberate indifference in delaying medical care asserted against Lt. McPherson and Officer Bobo.
The motion for summary judgment [Dkt. 31] is denied as to the claim of excessive force asserted against Lt. Emmerich and as to the claims of deliberate indifference for failure to intervene against Lt. McPherson and Officer Bobo.

Dkt. No. 50 at 10-11 (emphasis in original).

On September 18, 2013, the Court granted Barker's motion to appoint counsel, and on October 4, 2013, the Court appointed volunteer counsel. Thereafter, Barker, through his attorney, was permitted to file an amended complaint and did so on July 1, 2014. Barker's amended complaint contains the following claims against the following parties:

Count I Violation of constitutional rights for the use of excessive force and/or failing to intervene against the United States, Lt. Emmerich, Lt. McPherson, and Officer Bobo
Count II Assault and battery against the United States and Lt. Emmerich
Count III Violation of constitutional rights for deliberate indifference to Barker's medical needs against the United States, Lt. ...

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