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McLean v. Corizon Health Medical Provider, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

May 15, 2018

SCOTTIE MCLEAN, Plaintiff,
v.
CORIZON HEALTH MEDICAL PROVIDER, INC, DUSHAN ZATECKY, SCOTT LEVINE, ROBERT PERRY, SUSAN RESCH, NIKKI TAFOYA, MONICA GIBSON, ALEYCIA MCCULLOUGH, CORY CONLON, BRIAN MARTZ, TIMOTHY BODKIN, JAMES JACKSON, ADREONNIA WATSON, CAMAY FRANCUM, LINDA VAN NATTA, and CHARLENE A. BURKETT, Defendants.

          ENTRY DISMISSING AMENDED COMPLAINT AND DIRECTING FILING OF SECOND AMENDED COMPLAINT

          TANYA WALTON PRATT, UNITED STATES DISTRICT JUDGE.

         Plaintiff Scottie McLean (“McLean”), an Indiana prisoner, filed this civil action alleging his civil rights were violated at the Pendleton Correctional Facility. The 45-page Complaint, filed on February 21, 2018, names Corizon Health Medical Provider, Inc. and fifteen individuals as defendants. McLean alleges that on November 13, 2015, Dr. Scott Levine ordered the administration of involuntary psychotropic medication. Other defendants then carried out the doctor's orders with excessive force causing McLean's injuries.

         I. SCREENING STANDARD

         Because McLean 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 § 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 McLean 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).

         II. DISMISSAL OF THE AMENDED COMPLAINT

         On March 21, 2018, McLean filed a Motion for Leave to File Amended Prisoner Complaint, Dkt. [9], so that he might correct several errors pertaining to defendants' names and to add a defendant. The Court granted said Motion on April 3, 2018. The Amended Complaint is brought pursuant to 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Suits under § 1983 use the statute of limitations and tolling rules that states employ for personal injury claims. In Indiana, the applicable statute of limitations period is two years. See Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012); Ind. Code § 34-11-2-4.

         This action was filed on February 21, 2018, more than three months after the expiration of Indiana's two-year statute of limitations, with McLean's claims having accrued no later than November 13, 2015, when McLean alleges that Dr. Levine issued involuntary psychotropic medication orders and that medication was forcefully injected into McLean using excessive force and causing injury.

It is, of course, ‘irregular' to dismiss a claim as untimely under Rule 12(b)(6). . . . However, . . . dismissal under Rule 12(b)(6) on the basis of a limitations defense may be appropriate when the plaintiff effectively pleads [himself] out of court by alleging facts that are sufficient to establish the defense.

Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006) (internal citations omitted); see also Koch v. Gregory, 536 Fed.Appx. 659 (7th Cir. 2013) (stating that when the language of the complaint plainly shows that the statute of limitations bars the suit, dismissal under § 1915A is appropriate); Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012). That is the case here - the claims based on the constitutional violations occurring on November 13, 2015, must be dismissed.

         The dismissal of the Amended Complaint will not in this instance lead to the dismissal of the action at present. The Amended Complaint alleges that the defendants continue to violate Mr. McLean's Eighth Amendment right to constitutionally adequate medical care. The Amended Complaint states:

38. Since November 13, 2015, Corizon Medical, Dushan Zatecky, Scott Levine, Roger Perry, Susan Resch, Aleycia McCullough, Nikki Tafoya, Monica Gibson, RN, Camay Francum, Linda Van Natta, and Charlene Burkett have failed to adequately treat Plaintiff for his continuous pain and suffering from the harmful effects of the illegal forced injection of psychotropic drugs.
39. Since November 13, 2015, Dushan Zatecky, Cory Conlon, Brain [sic] Martz, Timothy Bodkin, James Jackson, and Watson have failed to adequately treat Plaintiff for his continuous ...

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