United States District Court, S.D. Indiana, Terre Haute Division
ENTRY SCREENING AMENDED COMPLAINT, DISMISSING
INSUFFICIENT CLAIMS, AND DIRECTING SERVICE OF
WILLIAM T. LAWRENCE, JUDGE UNITED STATES DISTRICT COURT
plaintiff has paid the initial partial filing fee. A
collection order will also issue to collect the balance of
the filing fee. The Court will now screen the amended
complaint filed on October 11, 2016, in accordance with 28
U.S.C. § 1915A(b).
plaintiff, Damon Giles (“Mr. Giles”), is a
federal inmate confined at the Federal Correctional
Institution in Terre Haute, Indiana. He names the following
defendants: 1) Dr. Bailey; 2) Dr. Wilson; 3) Ms. Gossett; 4)
Warden Julian; 5) Warden Lariva; 6) Genevieve Daugherty; 7)
Dr. Southwick; and 8) Dr. Kajimad George. This is a civil
rights complaint brought pursuant to the theory recognized in
Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971). Mr. Giles seeks compensatory and punitive
damages and injunctive relief.
Giles alleges that on or about April 27, 2015, he notified
Dr. Bailey of an infected area on his leg. He alleges that
for two months Dr. Bailey and Ms. Gossett failed to provide
treatment and the infection spread to his whole right leg,
leaving two holes in his leg. He alleges he was denied
medication and treatment and then later medication was
stopped, causing six blood clots. Mr. Giles alleges that Dr.
Southwick was aware of his medical problems but allowed him
to have infected fluids sit on the infected area for weeks.
He also alleges that Dr. Kajimad George put a device in him
which has been recalled and could cause death. He alleges
violations of his Fourteenth and Eighth Amendment rights.
Giles also alleges that Warden Julian, Warden Lariva, and Dr.
Wilson have “indirect participation” and are
liable for their subordinates' actions.
Giles asserts state law claims of negligence, malpractice,
professional misconduct, intentional and negligent infliction
of emotional distress, abuse of process, and failure to
protect from malicious process.
Mr. Giles' claims are legally insufficient, while others
will be allowed to proceed, as discussed below:
The claims against Warden Julian, Warden Lariva, and Dr.
Wilson are based on their role as supervisors of
employees' whose conduct allegedly violated Mr.
Giles' constitutional rights. Mr. Giles has alleged no
facts under which the supervisors could be found liable for
the actions of their employees. “[A] defendant cannot
be liable under Bivens on the basis of respondeat
superior or supervisory liability, rather, there must be
individual participation and involvement by the
defendant.” Arnett v. Webster, 658 F.3d 742,
757 (7th Cir. 2011).
Genevieve Daugherty is listed as a defendant, there are no
factual allegations of wrongdoing against her. Accordingly,
any claim against Genevieve Daugherty is dismissed for
failure to state a claim upon which relief can be granted.
Giles alleges that his Fourteenth Amendment rights have been
violated, but no facts support such a claim. Constitutional
claims are to be addressed under the most applicable
provision. See Conyers v. Abitz,416 F.3d 580, 586
(7th Cir. 2005). Helling v. McKinney, 509 U.S. 25,
31 (1993) (“It is undisputed that the treatment a
prisoner receives in prison and ...