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Milletary v. Westville Correctional Facility

United States District Court, N.D. Indiana, Hammond Division

March 26, 2018




         This matter is before the Court on the Complaint (DE #1) and the Non-Prisoner Request to Proceed in District Court Without Prepaying the Filing Fee (DE #2), both filed by Plaintiff, Kevin Lee Milletary, on June 1, 2017. For the reasons set forth below, the Court:

         (1) DISMISSES the complaint (DE #1) WITHOUT PREJUDICE;

         (2) DENIES the motion for leave to proceed in forma pauperis (DE #2);

         (3) GRANTS Plaintiff to and including April 27, 2018, to file an amended complaint in accordance with this order and either pay the filing fee or re-file his in forma pauperis petition, making sure that all information is up to date as of the time of filing; and

         (4) CAUTIONS Plaintiff that if he does not respond by the deadline, this action is subject to termination without further notice.


         Kevin Lee Milletary (“Plaintiff”) initiated this case by filing a complaint (DE #1) and petition to proceed in forma pauperis (“IFP”) (DE #2) on June 1, 2017. In his complaint, Plaintiff lists one defendant, the Westville Correctional Facility (the “WCF”). While Plaintiff was incarcerated, he worked for the WCF Maintenance Department. (DE #1, p. 2.) Plaintiff alleges that, in 2016 during the second week of July, the WCF “failed to provide [him] with eye protection (safety glasses) while [he was] hammer drilling into a ceiling of metal lath and plaster.” (Id.) According to Plaintiff, an unnamed supervisor told him that his “shop boss” did not issue safety glasses to the workers because they were “waiting for new ones to come in” and were not readily available. (Id. at 2-3.) As a result, debris from the ceiling fell into Plaintiff's right eye, lacerated his cornea, and became “stuck.” (Id. at 3.) Plaintiff allegedly complained of being in severe pain for two days, before he was taken to a nurse who washed his eye out and provided drops along with an eye patch to wear for a week. (Id.) After several requests, he was taken to an eye doctor who determined that Plaintiff has a “scar on [his] right eye that causes [his] vision to be permanently blurry.” (Id.) Plaintiff requests monetary relief to “cover the cost to repair [his] eye and damages for pain and suffering.” (Id. at 4.)


         The IFP statute, 28 U.S.C. section 1915, allows an indigent plaintiff to commence a civil action without prepaying the administrative costs (e.g. filing fee) of the lawsuit. See 28 U.S.C. § 1915(a)(1); see also Denton v. Hernandez, 504 U.S. 25, 27 (1992). When presented with an IFP application, the district court makes two determinations: (1) whether the suit has sufficient merit; and (2) whether the plaintiff's poverty level justifies IFP status. See Denton, 504 U.S. at 27; Smith-Bey v. Hosp. Adm'r, 841 F.2d 751, 757 (7th Cir. 1988). The screening court must dismiss the complaint if (a) the allegation of poverty is untrue, (b) the action is frivolous or malicious, (c) the action fails to state a claim upon which can be granted, or (d) the action seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

         To determine whether the suit states a claim upon which relief can be granted under 28 U.S.C. section 1915(e)(2)(B)(ii), a court applies the same standard as it would to a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6). DeWalt v. Carter, 224 F.3d 607, 611 (7th Cir. 2000). In deciding a motion to dismiss under Rule 12(b)(6), a court must accept all well-pleaded factual allegations as true and view them in the light most favorable to the plaintiff. Luevano v. WalMart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013). To survive dismissal, a “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). A plaintiff “must plead some facts that suggest a right to relief that is beyond the ‘speculative level.'” Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011). “This means that the complaint must contain allegations plausibly suggesting (not merely consistent with) an entitlement to relief.” Lavalais v. Village of Melrose Park, 734 F.3d 629, 632-33 (7th Cir. 2013) (internal quotation marks and citation omitted).

         Sufficient Merit

         To state a valid cause of action under 42 U.S.C. section 1983, a plaintiff must allege a violation of rights secured by the Constitution or laws of the United States and must show that a person acting under color of state law committed the alleged deprivation. West v. Atkins, 487 U.S. 42 (1988). The ultimate question in every section 1983 case is whether the plaintiff has been deprived of a right secured by the Constitution or laws of the United States. Baker v. McCollan, 443 U.S. 137, 140 (1979). In addressing a claim brought under section 1983, the analysis begins by identifying the specific constitutional right allegedly infringed by the defendant's actions. Graham v. Connor, 490 U.S. 386, 394, (1989). Section 1983 allows suit against any person who, acting under color of state law, deprives a prisoner of his Eighth Amendment rights. Berry v. Peterman, 604 F.3d 435, 439 (7th Cir. 2010). A violation of the Eighth Amendment's cruel and unusual punishments clause consists of two elements: (1) objectively, whether the injury is sufficiently serious to deprive the prisoner of the minimal civilized measure of life's necessities, and (2) subjectively, whether the official's actual state of mind was one of “deliberate indifference” to the deprivation. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson v. Seiter, 501 U.S. 294 (1991).

         Here, as an initial matter, the Court notes that Plaintiff has named only WCF as a defendant. Because the jail is not a suable entity, and he has not identified or named any other defendants either individually or otherwise, his claims must be dismissed. See Smith v. Knox County ...

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