United States District Court, S.D. Indiana, Terre Haute Division
ORDER GRANTING IN FORMA PAUPERIS STATUS, SCREENING
COMPLAINT, AND DIRECTING ISSUANCE AND SERVICE OF
William T. Lawrence, Judge
In Forma Pauperis Status
Jeses Valdez Duarte's motion for leave to proceed in
forma pauperis, Dkt. No. 2, is granted
because the Court finds that plaintiff does not have the
assets or means to pay even an initial partial filing fee.
Because the Prison Litigation Reform Act mandates that a
prisoner will not be prohibited from bringing a civil action
for the reason that he lacks the assets and means to pay an
initial partial filing fee, 28 U.S.C. § 1915(b)(4),
plaintiff will be granted a waiver of payment of the initial
partial filing fee in this case. He is still obligated,
however, to pay the full three hundred and fifty dollar
($350.00) filing fee pursuant to the statutory formula set
forth in 28 U.S.C. § 1915(b)(2); see Id. §
1915(b)(1). “All [28 U.S.C.] § 1915 has ever done
is excuse pre-payment of the docket fees; a litigant
remains liable for them, and for other costs, although
poverty may make collection impossible.”
Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.
Screening of the Complaint
plaintiff is a prisoner, his complaint is subject to the
screening requirements of 28 U.S.C. § 1915A. This
statute directs that the court shall dismiss a complaint or
any claim within a complaint which “(1) is frivolous,
malicious, or fails to state a claim upon which relief may be
granted; or (2) seeks monetary relief from a defendant who is
immune from such relief.” Id. To satisfy the
notice-pleading standard of Rule 8 of the Federal Rules of
Civil Procedure, a complaint must provide a “short and
plain statement of the claim showing that the pleader is
entitled to relief, ” which is sufficient to provide
the defendant with “fair notice” of the claim and
its basis. Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) and quoting
Fed.R.Civ.P. 8(a)(2)); see also Wade v. Hopper, 993
F.2d 1246, 1249 (7th Cir. 1993) (noting that the main purpose
of Rule 8 is rooted in fair notice: a complaint “must
be presented with intelligibility sufficient for a court or
opposing party to understand whether a valid claim is alleged
and if so what it is.”) (quotation omitted)). The
complaint “must actually suggest that the plaintiff has
a right to relief, by providing allegations that raise a
right to relief above the speculative level.” Windy
City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin.
Servs., 536 F.3d 663, 668 (7th Cir. 2008) (quoting
Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir.
2008)). The Court construes pro se pleadings liberally, and
holds pro se pleadings to less stringent standards than
formal pleadings drafted by lawyers. Obriecht v.
Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).
Duarte is a federal prisoner at the United States
Penitentiary at Terre Haute, Indiana. He asserts that he
suffers from Hepatitis C and despite repeated requests for
treatment, prison officials will not treat him and have
denied all of his medical requests. He seeks injunctive
relief in the form of treatment with proper medications such
as Harvoni and/or Sovaldi to prolong his life. Mr. Duarte
also seeks monetary damages. Additionally, Mr. Duarte asks to
join a class action lawsuit on this issue.
the pro se complaint liberally, Mr. Duarte presents a
constitutional claim against Warden J.E. Krueger in his
official capacity for injunctive relief. This claim
shall proceed. But the complaint fails to state a
Bivens claims, see Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971), as no specific allegations
of personal participation are made against Warden Krueger. To
the extent Mr. Duarte is attempting to name the USP Terre
Haute “Medical Services” as a defendant, that
attempt must fail because “Medical Services” is
not a proper defendant in a Bivens action.
Duarte wishes to pursue his Bivens claims, he may
file an amended complaint pursuant to Rule 15 of the Federal
Rules of Civil Procedure to bring appropriate Bivens
claims related to his Hepatitis C condition.
Court will address Mr. Duarte's request for a hearing on
injunctive relief after defendant has appeared. Concerning a
class action lawsuit, the Court is unaware of any class
action proceeding against the Bureau of Prisons on Mr.
Duarte's issue. If such a class exists, defendant shall
inform the Court of that fact at his earliest opportunity.
Issuance and Service of Process
clerk is directed to issue a single summons
to Warden J.E. Krueger, the United States attorney for this
district and the Attorney General of the United States at
Washington, D.C., pursuant to Fed.R.Civ.P. 4(i)(1). The
Marshal for this District or his Deputy shall serve the
summons, together with a copy of the complaint (Dkt. No. 1)
and a copy of this Order, on defendant Warden J.E. Krueger at
the expense of the United States.
may be made by registered or certified mail
at the expense of the United States.
Obligation to Update Address
Court must be able to communicate with pro se parties through
the United States mail. While this action is pending,
plaintiff shall report any change of address to the Court, in
writing, within ten days of any change. The failure to keep
the Court informed of a current mailing address may result in