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Huspon v. Zatecky

United States District Court, S.D. Indiana, Terre Haute Division

August 14, 2018

TERRY W. HUSPON, Plaintiff,
v.
DUSHAN ZATECKY, RICHARD TALLEY, Defendants.

          ENTRY DISMISSING COMPLAINT AND DIRECTING FILING OF AMENDED COMPLAINT

          Hon. William T. Lawrence, Judge United States District Court

         I. Screening Standard

         The plaintiff is a prisoner currently incarcerated at Wabash Valley Correctional Facility. Because the plaintiff 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 28 U.S.C. § 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 the plaintiff 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. The Complaint

         The complaint names two defendants: 1) Dushan Zatecky, and 2) Richard Talley. The plaintiff alleges that on September 15, 2016, while he was incarcerated at Pendleton Correctional Facility, he was awoken by loud noises and a burning smell. When he pulled back the sheet he had hung on his bunk, he was hit in the face and eyes with welding sparks causing temporary blindness and burning. He also inhaled smoke and iron dust. He was taken to an outside hospital for treatment. He also alleges, that he was overexposed to zinc and other materials which caused him to have flu-like symptoms. He seeks monetary damages.

         Othering than being named in the caption, the two defendants are not mentioned in the plaintiff's factual allegations. “Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed.” Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir.1974).

         III. Dismissal of Complaint

         Because the Court has been unable to identify a viable claim for relief against any particular defendant, the complaint is subject to dismissal. The dismissal of the complaint will not in this instance lead to the dismissal of the action at present. Instead, the plaintiffs shall have through September 17, 2018, in which to file an amended complaint.

         In filing an amended complaint, the plaintiff shall conform to the following guidelines: (a) the amended complaint shall comply with the requirement of Rule 8(a)(2) of the Federal Rules of Civil Procedure that pleadings contain “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)); (b) the amended complaint must include a demand for the relief sought; and (c) the amended complaint must identify what legal injury they claim to have suffered and what persons are responsible for each such legal injury. The plaintiff must state his claims “in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P. 10(b). The plaintiff is further notified that “[unrelated claims against different defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

         In organizing his complaint, the plaintiff may benefit from utilizing the Court's complaint form. The clerk is directed to include a copy of the prisoner civil rights complaint form along with the plaintiffs copy of this Entry.

         Any amended complaint should have the proper case number, 2:18-cv-00300-WTL-MJD and the words “Amended Complaint” on the first page. If an amended complaint is filed as directed above, it will be screened. If no amended complaint is filed, this action will be dismissed for the reasons set forth above.

         IT ...


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