United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISMISSING AMENDED COMPLAINT AND DIRECTING
FILING OF SECOND AMENDED COMPLAINT
WALTON PRATT, UNITED STATES DISTRICT JUDGE.
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
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).
DISMISSAL OF THE AMENDED COMPLAINT
March 21, 2018, McLean filed a Motion for Leave to File
Amended Prisoner Complaint, Dkt. , 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
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.
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
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