Bradbury v. Bagwell et al

Filing 9

IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that HEALTH SERVICES USP MARION, IL is DISMISSED from the action with prejudice. The Clerk of the Court shall terminate this entity as a party in CM/ECF. Plaintiff is GRANTED leave to file a First Amended Complaint on or before May 1, 2018. Should Plaintiff fail to file his First Amended Complaint within the allotted time or consistent wit h the instructions set forth in this Order, the entire case shall be dismissed with prejudice for failure to comply with a court order and/or for failure to prosecute his claims. (Amended Pleadings due by 5/1/2018). Signed by Judge J. Phil Gilbert on 4/3/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAMES BRADBURY,
# 33970-086,
Plaintiff,
vs.
MS. BAGWELL,
RANDALL PASS,
P.A. CASTILLO,
P.A. GRISWALL,
P.A. BROOKS, and
HEALTH SERVICES USP MARION, IL

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Case No. 18-cv-428-JPG

Defendants.
MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, an inmate in the United States Penitentiary in Marion, Illinois, brings this pro se
action for alleged violations of his constitutional rights by persons acting under the color of
federal authority.1 See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Plaintiff
claims Defendants exhibited deliberate indifference to his back injury and associated pain, and
that Defendants have failed to treat his hernia.
This case is now before the Court for a preliminary review of the Complaint pursuant to
28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil action in

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Although Plaintiff does not articulate his claims as civil rights violations, the Complaint appears to be brought
under Bivens because he seeks to recover damages from individual federal officials. Plaintiff used the Court's
standard complaint form, which includes check-boxes for a plaintiff to indicate whether he seeks to bring a civil
rights complaint or a complaint under the Federal Tort Claims Act. However, Plaintiff left this section of the form
blank.

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which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line
between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; this action is subject to summary dismissal.
The Complaint
According to the Complaint, on March 8, 2016, x-rays revealed that Plaintiff is suffering
from spinal compressions and that his disk space is narrowing “at multiple levels.” (Doc. 1, p.
5). Plaintiff claims that he has attempted to receive necessary treatment for his back injury,
including pain medication, a back brace, and a “proper” mattress, to no avail. Id. Plaintiff
claims that when he is examined by medical personnel, he reports that his pain level is at a 9.

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Nonetheless, “they” refuse to treat him, saying his pain is “unspecified.” Id. Plaintiff also
claims that “they” know he has an untreated hernia, but have failed to treat it. Id.
Dismissal of Improper Defendant
Plaintiff has named the Health Services Division of USP Marion as a defendant. This
Defendant, a division of a federal agency, is not a proper defendant in a Bivens action. See FDIC
v. Meyer, 510 U.S. 471, 483-486 (1994) (federal agencies are not subject to suit for damages
under Bivens). Accordingly, Health Services USP Marion, IL shall be dismissed from the action
with prejudice.
Discussion
Plaintiff’s allegations suggest that he is attempting to assert one or more Eighth
Amendment claims for deliberate indifference to a serious medical need.

Unfortunately,

however, Plaintiff does not provide enough information to allow the Court to determine who was
personally involved in the alleged constitutional violation or violations. Indeed, none of the
Defendants are even mentioned in the body of the Complaint.
“Section 1983 creates a cause of action based on personal liability and predicated upon
fault; thus liability does not attach unless the individual defendant caused or participated in a
constitutional violation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir.1996). Moreover, the
doctrine of respondeat superior (supervisory liability) does not apply to actions filed under
42 U.S .C. § 1983. See Pacelli v. deVito, 972 F.2d 871, 877 (7th Cir.1992). Section 1983 does
not create collective or vicarious responsibility. Id.
If Plaintiff wants to pursue a claim or claims regarding inadequate medical care, he must
file an amended complaint.

The amended complaint should identify who denied Plaintiff

medical care and/or who provided Plaintiff with inadequate treatment. For instance, if a specific

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physician or physician’s assistant examined Plaintiff and failed to treat his injuries or pain,
Plaintiff should explain, in the body of the amended complaint, what that individual did or failed
to do. Allegations about staff or employees are insufficient. It is also insufficient to allege that
“they” denied Plaintiff medical care. In his amended complaint, if known, Plaintiff should
identify these individuals by name and describe how they were involved in his medical
treatment. If Plaintiff does not know the names of these individuals, he can refer to them by Doe
designation, e.g., John Doe. Finally, any individual Plaintiff intends to sue should be identified
as a defendant in the case caption and should be referenced in the body of the amended
complaint.

That is, Plaintiff’s statement of claim must explain how each defendant was

personally involved in denying Plaintiff medical care.

See Collins v. Kibort, 143 F.3d 331, 334

(7th Cir. 1998) (merely naming a defendant in the caption is insufficient to state a claim); Potter
v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (“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, even under the liberal
construction to be given pro se complaints.”).
Injunctive Relief
In addition to monetary damages, Plaintiff seeks “adequate treatment for all conditions
and the associated pain.” This appears to be a request for injunctive relief at the close of the
case. However, given Plaintiff’s claims pertaining to ongoing and untreated injuries (spinal
compression and a hernia), Plaintiff may be in need of more immediate relief. If Plaintiff needs
medical care during the pendency of this action or wishes to seek some other type of interim
relief, he should file a motion for a TRO or a preliminary injunction pursuant to Rule 65(a) or (b)

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indicating the exact form of relief he seeks, the reasons why he seeks said relief, and the factual
allegations supporting his request. He may do so at any time during the pending action.
Disposition
IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice for
failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that HEALTH SERVICES USP MARION, IL is
DISMISSED from the action with prejudice. The Clerk of the Court shall terminate this entity
as a party in CM/ECF.
Plaintiff is GRANTED leave to file a “First Amended Complaint” on or before May 1,
2018. Should Plaintiff fail to file his First Amended Complaint within the allotted time or
consistent with the instructions set forth in this Order, the entire case shall be dismissed with
prejudice for failure to comply with a court order and/or for failure to prosecute his claims. FED.
R. APP. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v.
Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2).
Should Plaintiff decide to file a First Amended Complaint, it is strongly recommended
that he use the forms designed for use in this District for such actions. He should label the form,
“First Amended Complaint,” and he should use the case number for this action (i.e. 18-cv-428JPG).
To enable Plaintiff to comply with this Order, the CLERK is DIRECTED to mail
Plaintiff a blank civil rights complaint form.
An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the original Complaint.

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Thus, the First Amended Complaint must stand on its own, without reference to any previous
pleading, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the
First Amended Complaint. The First Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915(e)(2).
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $350.00 remains due and payable,
regardless of whether Plaintiff elects to file a First Amended Complaint.

See 28 U.S.C.

§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this Order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: April 3, 2018
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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