United States District Court, S.D. Indiana, Terre Haute Division
ENTRY GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, DISCUSSING COMPLAINT, DISMISSING INSUFFICIENT CLAIMS, AND DIRECTING SERVICE OF PROCESS
WILLIAM T. LAWRENCE, District Judge.
In Forma Pauperis Motion
The plaintiff's motion for leave to proceed in forma pauperis [dkt 5] is granted, as payment of a partial filing fee is not feasible at this time.
Plaintiff Fernando Bustillo is currently incarcerated at the United States Penitentiary in Terre Haute, Indiana ("USP-TH"). In his complaint, Mr. Bustillo alleges that the defendants violated his constitutional rights in several ways, which are discussed in more detail below. He seeks damages and injunctive relief. Because Mr. Bustillo is a "prisoner" as defined by 28 U.S.C. § 1915(h), this Court has an obligation under 28 U.S.C. § 1915A(b) to screen his complaint before service on the defendants.
Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the complaint if it is frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is immune from such relief. In determining whether the complaint states a claim, the Court applies the same standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal under federal pleadings standards,
[the] complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints such as that filed by Mr. Bustillo are construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008). Nonetheless, "[p]ro se litigants are masters of their own complaints and may choose who to sue-or not to sue, " Myles v. United States, 416 F.3d 551, 552 (7th Cir. 2005), and the court may not rewrite a complaint to include claims that were not presented, Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999); Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993).
Mr. Bustillo's claims are brought under the theory set forth in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). He seeks damages and injunctive relief. Bivens "authorizes the filing of constitutional tort suits against federal officers in much the same way that 42 U.S.C. § 1983 authorizes such suits against state officers...." King v. Federal Bureau of Prisons, 415 F.3d 634, 636 (7th Cir. 2005); see also Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995) (noting that "the effect of Bivens was to create a remedy against federal officers acting under color of federal law that was analogous to the Section 1983 action against state officials").
The complaint alleges Bivens claims against the following employees of the TH-USP: (1) Todd Royer; (2) T. Jensen; (3) G. Rogers; (4) J. Sherman; and (5) Heather Matta. Mr. Bustillo asserts eleven claims in his ...