United States District Court, S.D. Indiana, Terre Haute Division
ENTRY SCREENING COMPLAINT, DISMISSING INSUFFICIENT
CLAIMS AND DIRECTING FURTHER PROCEEDINGS
William T. Lawrence, Judge
In Forma Pauperis
plaintiff's motion to proceed in forma pauperis,
Dkt. No. 3, is granted. The plaintiff is
assessed an initial partial filing fee of Six Dollars and
Eighty-Three Cents ($6.83). He shall have through
December 28, 2017, to pay this sum
to the clerk.
Reece, who is incarcerated at the Putnamville Correctional
Facility, filed a pro se complaint under 42 U.S.C. §
1983, alleging that his civil rights were violated. The Court
is required to screen complaints brought by prisoners seeking
relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. § 1915A(b).
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Gladney v. Pendelton Corr. Facility, 302
F.3d 773, 774 (7th Cir. 2002). The Court may, therefore,
dismiss a claim as frivolous where it is based on an
indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S.
at 327; Gladney, 302 F.3d at 774. “Malicious,
” although sometimes treated as a synonym for
“frivolous, ” “is more usefully construed
as intended to harass.” Lindell v. McCallum,
352 F.3d 1107, 1109 (7th Cir. 2003) (citations omitted);
accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir.
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts, and his
statement need only “give the defendant fair notice of
what the ... claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)); see Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). However, a complaint that offers
“labels and conclusions” or “formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. “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.”
Id. The complaint allegations “must be enough
to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555;
Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the Court must then “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must allege that: (1) he was deprived of a right
secured by the Constitution or laws of the United States; and
(2) the deprivation was visited upon him by a person or
persons acting under color of state law. Buchanan-Moore
v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009); see also Gomez v. Toledo, 446 U.S. 635, 640
(1980). The Court is obliged to give the plaintiff's pro
se allegations, “however inartfully pleaded, ” a
liberal construction. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
the plaintiff alleges that he was injured on June 21, 2016,
when defendant Officer Sharp pulled him off of an Indiana
Department of Correction (“IDOC”) transport bus
while he was handcuffed causing him to fall to the ground and
severely injuring himself. These allegations implicate the
plaintiff's Eighth Amendment rights. The plaintiff also
alleges a state law claim for negligence.
claims against Executive Assistant G. Roseberry and
Commissioner Rob Carter are dismissed as
legally insufficient because there is no allegation of
wrongdoing on their part. “Where a complaint alleges no
specific act or conduct on the part of the defendant and the
complaint is silent as to the defendant except for his name
appearing in the caption, the complaint is properly
dismissed.” Potter v. Clark, 497 F.2d 1206,
1207 (7th Cir. 1974); see Black v. Lane, 22 F.3d
1395, 1401 and n.8 (7th Cir. 1994)(district court properly
dismissed complaint against one defendant when the complaint
alleged only that defendant was charged with the
administration of the institution and was responsible for all
persons at the institution).
claims against Wexford of Indiana are
dismissed. Wexford of Indiana did not take
over providing medical care for the IDOC until April 1, 2017.
The allegations that forms the basis of this lawsuit occurred
on June 21, 2016. However, even if the plaintiff properly
named Corizon in this action, any claims against Corizon must
be dismissed as legally insufficient. Because Corizon acts
under color of state law by contracting to perform a
government function, i.e., running a correctional institution
or providing medical care to correctional facilities, it is
treated as a government entity for purposes of Section 1983
claims. See Jackson v. Illinois Medi-Car, Inc., 300
F.3d 760, 766 fn.6 (7th Cir. 2002); but see Shields v.
Illinois Department of Correction, 746 F.3d 782, 790
(7th Cir. 2014) (finding “substantial grounds to
question the extension of the Monell holding for
municipalities to private corporations”). Therefore, to
state a cognizable deliberate indifference claim against
Corizon, the plaintiff must allege that he suffered a
constitutional deprivation as the result of an express policy
or custom of Corizon. The plaintiff makes no such
allegations. As such any claims in this complaint that could
understood to be against Corizon are
addition, the IDOC is dismissed as a
defendant because the Eleventh Amendment immunity bars suits
against states and their agencies regardless of the relief
sought, whether damages or injunctive relief. Seminole
Tribe of Florida v. Florida,517 U.S. 44, 58 (1996);
Pennhurst State School and Hospital v. Halderman,465 U.S. 89, 102 (1984). In addition, states and their
agencies are not "persons" subject to suit pursuant
to 42 U.S.C. § 1983 under the ...