United States District Court, S.D. Indiana, Indianapolis Division
WILLIAM T. LAWRENCE, JUDGE.
Dismissing Complaint and Directing Filing of Amended
The plaintiff's motion to proceed in forma
pauperis, Dkt. No. 3, is granted. He is
assessed an initial partial filing fee of Nine Dollars and
Fifty Cents ($9.50). He shall have through April 18,
2018, to pay this sum to the clerk.
The plaintiff's motion for assistance with recruiting
counsel, Dkt. No. 2 is denied as premature.
The filing fee has not been paid, the complaint has not been
screened, and the defendants have not been served. The
Seventh Circuit has found that “until the defendants
respond to the complaint, the plaintiff's need for
assistance of counsel . . . cannot be gauged.”
Kadamovas v. Stevens, 706 F.3d 843, 845 (7th Cir.
plaintiff is a prisoner currently incarcerated at New Castle
Correctional Facility (“New Castle”). Because the
plaintiff 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,
[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 the plaintiff 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).
the plaintiff alleges he was denied access to the Indiana
appellate courts. More specifically, the plaintiff alleges
that the Indiana Supreme Court sent him a notice of defect on
December 4, 2017, notifying him of a defect in the filing of
his appellate brief. He said that the mail room failed to
deliver the notice of defect to him in a timely manner such
that he could timely cure the defect.
access to the courts claim only exists if a prisoner is
unreasonably prevented from presenting legitimate grievances
to a court. Thus, when he alleges a denial of the right to
access to the court, he must plead specific prejudice to
state a claim, such as by alleging that he missed court
deadlines, failed to make a timely filing, or that legitimate
claims were dismissed.
the plaintiff has not alleged any prejudice he suffered based
on the mail room's alleged late delivery of the notice of
defect from the Indiana court. He has failed to “make
specific allegations as to the prejudice suffered because of
the defendants' alleged conduct” and thus his right
to access-to-courts claim is dismissed. Ortloff v. United
States, 335 F.3d 652, 656 (7th Cir. 2003). As such, the
plaintiff's access to the court's claim is
dismissed as factually inadequate. Defendant
Ms. Gibson, as the mail room supervisor, is also
dismissed as a defendant.
plaintiff also alleges a claim against defendant Keith Butts
based on his status as Superintendent. The plaintiff does not
allege that Butts personally participated in the alleged
delay in the delivery of his mail. Any claims against Keith
Butts are dismissed because there is no specific allegation
of wrongdoing on his 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). To the extent Butts is included
as a defendant because of his supervisory position, this
position alone is not adequate to support the imposition of
liability. See West v. Waymire, 114 F.3d 646, 649
(7th Cir. 1997) (“the doctrine of respondeat superior
is not available to a plaintiff in a section 1983
suit”). Defendant Keith Butts is
dismissed as a defendant.
the Court has been unable to identify a viable claim for
relief against any particular defendant, the ...