United States District Court, S.D. Indiana, Terre Haute Division
ENTRY ON SELECTED MATTERS
William T. Lawrence, Judge
action is before the Court for resolution of several motions
by Plaintiff Terry Parker.
Motion for Leave to Amend Complaint
Parker is an inmate confined at the U.S. Penitentiary at
Terre Haute, Indiana. The action has proceeded to this point
with a single claim: that the Defendant Ashley Matchett, a
physical therapist, was deliberately indifferent to Mr.
Parker's serious foot injury when she met with him on
April 13, 2017.
Parker now seeks to amend his complaint to add additional
defendants, including two private companies and their owners
and employees. Indeed, the proposed amended complaint
indicates that Ms. Matchett is an owner or employee of Terre
Haute Physical Therapy, PC-not an employee of the federal
Mr. Parker is a prisoner, his proposed amended complaint is
subject to the screening requirement of 28 U.S.C. §
1915A(b). Pursuant to 28 U.S.C. § 1915A(b), the Court
must dismiss a 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 a 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
pleadings such as Mr. Parker's 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).
amended complaint asserts claims of inadequate medical care
provided by private actors. Medical malpractice is a cause of
action arising from state law-not from civil rights protected
by federal law. The Court allowed the original complaint to
proceed under the theory recognized in Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971),
on the possibility that Ms. Matchett was a federal employee.
But the proposed amended complaint indicates that this is not
the case. And Bivens only authorizes suits against
federal employees or agents-not private citizens or entities.
See Corr. Servs. Corp. v. Malesko, 534 U.S. 61
(2001); Holz v. Terre Haute Regional Hosp., 123
Fed.Appx. 712, 713 (7th Cir. 2005) (holding that a prisoner
cannot bring a Bivens claim against a private
hospital or nurse who works at that hospital because a
“Bivens claim cannot be brought against a
private entity (or individual), even if it is a federal
presented, the proposed amended complaint does not include
any allegations that would raise a legal issue arising from
the Constitution or laws of the United States as required by
28 U.S.C. § 1331. See Williams v. Aztar Ind. Gaming
Corp., 351 F.3d 294, 298 (7th Cir. 2003) (explaining
federal courts may exercise federal-question jurisdiction
when a plaintiff's right to relief is created by or
depends on a federal statute or constitutional provision).
Nor does it include any facts from which the Court could
infer diversity of citizenship under 28 U.S.C. § 1332.
See Denlinger v. Brennan, 87 F.3d 214, 217 (7th Cir.
1996) (holding that failure to include allegations of
citizenship requires dismissal of complaint based on
diversity jurisdiction). In short, the Court would not have
any basis to exercise jurisdiction over the claims presented
in the proposed amended complaint.
the Court would have to dismiss all claims in the proposed
amended complaint, Mr. Parker's motion for leave to
amend, Dkt. No. 29, is denied. This action
shall continue to proceed with the complaint, Dkt. No. 2, as
the operative pleading.
Plaintiff's Motion for Summary Judgment
Parker's motion for summary judgment, Dkt. No. 31, is
denied because it concerns claims asserted
in the proposed amended complaint.
Motion to ...