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Harmon v. Carter

United States District Court, S.D. Indiana, Indianapolis Division

September 4, 2019

DAVID J. HARMON, Plaintiff,
v.
ROBERT E. CARTER, DUSHAN ZATECKY, DUANE ALSIP, Defendants.

          ENTRY GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, DISMISSING COMPLAINT, DENYING MOTION FOR TEMPORARY RESTRAINING ORDER, AND DENYING MOTION TO MAINTAIN SUIT AS CLASS ACTION

          JAMES R. SWEENEY II, JUDGE.

         This matter is before the Court for resolution of three motions by Plaintiff David Harman[1] and for screening of his complaint pursuant to 28 U.S.C. § 1915A(b).

         I. Motion for Leave to Proceed In Forma Pauperis

         Mr. Harman's motion for leave to proceed in forma pauperis, dkt. [3], is granted to the extent that he is assessed an initial partial filing fee of Twenty-Seven Dollars and Thirty-Three Cents ($27.33). See 28 U.S.C. § 1915(b)(1). Mr. Harman shall have through October 4, 2019, to pay this sum to the clerk of the district court.

         Although Mr. Harman is excused from pre-paying the full filing fee, he still must pay the three hundred and fifty dollar ($350.00) filing fee pursuant to the statutory formula set forth in 28 U.S.C. § 1915(b)(2) when able. See 28 U.S.C. § 1915(b)(1) (“the prisoner shall be required to pay the full amount of a filing fee.”).

         II. Screening and Dismissal of Complaint

         Mr. Harman is a prisoner at the Pendleton Correctional Facility (Pendleton). He brings this civil rights action under 42 U.S.C. § 1983. Because the plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915A(c), this Court has an obligation under 28 U.S.C. § 1915A(b) to screen his complaint before service on the defendants.

         A. Screening Standard

         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 Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017). 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 pleadings drafted by lawyers.” Cesal, 851 F.3d at 720.

         B. The Complaint

         The complaint names the following defendants: 1) Commissioner Robert E. Carter; 2) Warden Dushan Zatecky; and 3) Assistant Warden Duane Alsip. The plaintiff sues each defendant in his individual and official capacity. He seeks compensatory and punitive damages and injunctive relief.

         The plaintiff alleges that Pendleton is overcrowded. He alleges that the Warden and Assistant Warden have started double-bunking inmates. He also alleges that due to the overcrowding and being on lockdown, medical treatments have been delayed ...


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