United States District Court, S.D. Indiana, Indianapolis Division
ENTRY GRANTING IN FORMA PAUPERIS STATUS, SCREENING
COMPLAINT, AND DIRECTING ISSUANCE AND SERVICE OF
WALTON PRATT, JUDGE United States District Court.
In Forma Pauperis Status
Lance Howard's motion for leave to proceed in forma
pauperis, dkt. , is granted. The
assessment of even an initial partial filing fee is not
feasible at this time. Notwithstanding the foregoing ruling,
plaintiff owes the filing fee. "All [28 U.S.C.] §
1915 has ever done is excuse/re-payment of the docket fees; a
litigant remains liable for them, and for other costs,
although poverty may make collection impossible."
Abdul-Wadoodv. Nathan, 91 F.3d 1023, 1025 (7th Cir.
Screening of the Complaint
Lance Howard is an Indiana inmate incarcerated at the New
Castle Correctional Facility. He filed this action on
November 17, 2017, pro se and in forma
pauperis, naming a single defendant, Nurse McNue, who is
employed at the facility.
plaintiff is a prisoner, the complaint is subject to the
screening requirements of 28 U.S.C. § 1915A. This
statute directs that the court shall 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 relief." Id. To satisfy the
notice-pleading standard of Rule 8 of the Federal Rules of
Civil Procedure, a complaint must provide a "short and
plain statement of the claim showing that the pleader is
entitled to relief, " which is sufficient to provide the
defendant with "fair notice" of the claim and its
basis. Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) and quoting Fed.R.Civ.P. 8(a)(2));
see also Wade v. Hopper, 993 F.2d 1246, 1249 (7th
Cir. 1993) (noting that the main purpose of Rule 8 is rooted
in fair notice: a complaint "must be presented with
intelligibility sufficient for a court or opposing party to
understand whether a valid claim is alleged and if so what it
is.") (quotation omitted)). The complaint "must
actually suggest that the plaintiff has a right to relief, by
providing allegations that raise a right to relief above the
speculative level." Windy City Metal Fabricators
& Supply, Inc. v. CIT Tech. Fin. Servs., 536 F.3d
663, 668 (7th Cir. 2008) (quoting Tamayo v.
Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008)). The
Court construes pro se pleadings liberally, and holds pro se
pleadings to less stringent standards than formal pleadings
drafted by lawyers. Obriecht v. Raemisch, 517 F.3d
489, 491 n.2 (7th Cir. 2008).
Allegations in the Complaint
contends that Nurse McNue has been deliberately indifferent
to his serious medical needs when on three occasions in
October and November, 2017, she refused to bring him his
inhaler and on one occasion in October when she did bring the
inhaler she purposefully rubbed it on the dirty "cuff
port" of his cell door. He contends this violates his
Eighth Amendment rights to be free from cruel and unusual
Eighth Amendment claim against Nurse McNue shall proceed as
plead. Estelle v. Gamble, 429 U.S. 97, 104 (1976);
Farmer v. Brennan, 511 U.S. 825, 842 (1994).
Although plaintiff uses the word "retaliation" in
describing Nurse McNue's conduct, the Court finds no
allegations to support a retaliation claim. To state a First
Amendment claim for retaliation, a plaintiff must allege that
"(1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely
deter First Amendment activity in the future; and (3) the
First Amendment activity was at least a motivating factor in
the defendants' decision to take the retaliatory
action." Bridges v. Gilbert, 557 F.3d 541, 546
(7th Cir.2009) (internal quotation omitted). No such facts
are plead in the complaint.
Issuance and Service of Process
clerk is designated pursuant to Fed. R.
Civ. P. 4(c)(3) to issue process to defendant Nurse
McNue in the manner specified by Rule 4(d). Process shall
consist of the complaint, dkt. 1, applicable forms (Notice of
Lawsuit and Request for ...