United States District Court, S.D. Indiana, Terre Haute Division
ENTRY GRANTING IN FORMA PAUPERIS STATUS, DISMISSING
COMPLAINT, AND DIRECTING PLAINTIFF TO SHOW CAUSE
J. McKINNEY, JUDGE.
plaintiff's request to proceed in forma pauperis
[dkt. 2] is granted. The assessment of even an initial
partial filing fee is not feasible at this time.
Notwithstanding the foregoing ruling, the plaintiff owes the
filing fee. “All [28 U.S.C.] § 1915 has ever done
is excuse pre- payment of the docket fees; a
litigant remains liable for them, and for other costs,
although poverty may make collection impossible.”
Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.
complaint is now subject to the screening requirement of 28
U.S.C. § 1915A(b). This statute directs that the court
dismiss a complaint or any claim within a complaint which
“(1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such
plaintiff is confined at the Vigo County Jail (the
“Jail”). He filed this civil rights action
presumably pursuant to 42 U.S.C. § 1983 on February 14,
2017, naming the following defendants: 1) Dee Smiley; 2) C.
Funk; 3) G. Ewing; and 4) Levi Edwards. The plaintiff alleges
that on October 6, 2016, he was a trustee at the Jail and
Levi Edwards directed him to clean up a large amount of blood
even though the plaintiff was not hazmat certified. He
alleges that Mr. Edwards mixed some chemicals for him to use
and that the chemicals he used effected his lungs to the
point where the nurse had to call the poison control center
because of his difficulty breathing. He now has to use an
inhaler prescribed by a physician. He alleges he never had
breathing problems before this incident. For relief, he
requests that the Jail educate the trustees on blood spills
and how to disinfect and decontaminate areas. He also
requests that the trustees be hazmat certified.
only allegations of wrongdoing are associated with defendant
Edwards. None of the other defendants are alleged to have
participated in any way in the October 6, 2016, incident.
“Liability depends on each defendant's knowledge
and actions, not on the knowledge or actions of persons they
supervise.” Burks v. Raemsich, 555 F.3d 592,
594 (7th Cir. 2009). Merely naming supervisors or high level
officials as defendants who did not participate in or direct
or consent to the constitutional violation does not state a
viable claim because respondeat superior is not
sufficient to support a § 1983 claim. See Childress
v. Walker, 787 F.3d 433, 439-40 (7th Cir. 2015). Because
there are no allegations in the complaint implicating
defendants Smiley, Funk and Ewing, any claims brought against
those defendants are dismissed for failure to state a claim
upon which relief can be granted.
respect to the claim against Mr. Edwards, no facts lead to an
inference that Mr. Edwards knew that the chemicals he
provided for the cleaning assignment would harm the
plaintiff. The allegations against defendant Edwards at most
assert a state law claim of negligence. Negligence is not
sufficient to support a federal § 1983 claim. See
Harper v. Albert, 400 F.3d 1052, 1065 (7th Cir. 2005);
Waubanascum v. Shawano County, 416 F.3d 658, 670
(7th Cir. 2005) (neither negligence nor a violation of state
law provide a basis for liability under § 1983).
Therefore, the claim against Levi Edwards must be dismissed
for failure to state a claim upon which relief can be
plaintiff can plead himself out of court by alleging facts
that show there is no viable claim.” Pugh v.
Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008). For the
above reasons, the complaint is dismissed for failure to
state a claim upon which relief can be granted.
plaintiff shall have through March 17, 2017, in which to
either show cause why judgment consistent with this Entry
should not issue or to identify a viable claim which was not
considered by the Court in this Entry. See Luevano v.
Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th Cir.
2013) (“Without at least an opportunity to amend or to
respond to an order to show cause, an IFP applicant's
case could be tossed out of court without giving the
applicant any timely notice or opportunity to be heard to
clarify, contest, or simply request leave to amend.”).
plaintiff fails to show cause or seek leave to amend, the
action will be dismissed for failure to state a claim upon
which relief can be granted without further notice.
Court also suggests that the plaintiff bring his request for
training and information to the Jail ...