United States District Court, S.D. Indiana, Terre Haute Division
TERRY W. HUSPON, Plaintiff,
DUSHAN ZATECKY, RICHARD TALLEY, Defendants.
ENTRY DISMISSING COMPLAINT AND DIRECTING FILING OF
William T. Lawrence, Judge United States District Court
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).
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.
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).
Dismissal of Complaint
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
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).
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
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.