Bey v. Allen County Jail et al

Filing 4

OPINION AND ORDER re 3 AMENDED COMPLAINT filed by Plaintiff Tyquan Stewart. Plaintiff has until 7/15/2016 to show cause why this action should not be dismissed. Signed by Senior Judge James T Moody on 6/7/16. (cc: Tyquan Stewart).(cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
TYQUAN STEWART,
Plaintiff,
v.
STATE OF INDIANA, et al.
Defendants.

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No. 1:16 CV 138

OPINION AND ORDER
Tyquan Stewart, a pro se plaintiff, has filed an amended complaint (DE # 3)
seeking relief under 42 U.S.C. § 1983 along with a Motion for Leave to Proceed In Forma
Pauperis (DE # 2). Ordinarily, a plaintiff must pay a statutory filing fee of $350 to bring
an action in federal court. 28 U.S.C. § 1914(a). However, the federal in forma pauperis
statute, 28 U.S.C. § 1915, provides indigent litigants an opportunity for meaningful
access to the federal courts despite their inability to pay the costs and fees associated
with that access. To authorize a litigant to proceed in forma pauperis, a court must make
two determinations: first, whether the litigant is unable to pay the costs of commencing
the action, 28 U.S.C. § 1915(a)(1); and second, whether the action is frivolous or
malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief, 28 U.S.C. § 1915(e)(2)(B).
With respect to the second of these determinations, district courts have the
power under 28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the
complaint on the defendants, and courts must dismiss a complaint if it fails to state a

claim. Courts apply the same standard under § 1915(e)(2)(B) as when addressing a
motion to dismiss under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6). DeWalt v. Carter,
224 F.3d 607, 611 (7th Cir. 2000). To survive a motion to dismiss under federal pleading
standards, the complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). 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. Id.
Plaintiff names five defendants in his suit alleging a violation of his civil rights.
(DE # 3 at 2.) Plaintiff’s first claim is against the State of Indiana for discrimination and
alleged improprieties involving plaintiff’s criminal case. (Id.) The Eleventh Amendment,
precludes a citizen from suing a state in federal court without the state’s consent,
therefore this claim is barred. Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001).
Plaintiff’s second claim is against Westville State Prison, where he alleges he was
punished by being forced to throw away his food, despite the fact that he is diabetic.
(DE # 3 at 2.) Westville, as an institution, is a state agency and as such, this claim is also
barred by the Eleventh Amendment. Wynn, 251 F.3d at 592. However, plaintiff will be
afforded the opportunity to file an amended complaint as to these claims against any
individual officers who may be liable. Donald v. Cook Cty Sheriff’s Dept., 95 F.3d 548, 555
(7th Cir 1996) (“when the substance of a pro se civil rights complaint indicates the
existence of claims against individual officials not specifically named in the caption of

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the complaint, the district court must provide the plaintiff with an opportunity to
amend the complaint.”)
Plaintiff’s third claim is against the Allen County Jail for mistreatment while he
was in custody. (DE # 3 at 3.) Plaintiff does not sue any individual officers but only the
jail itself. In the absence of any alleged individual capacity violations, plaintiff must
allege that an official policy or custom of the jail caused deprivation of constitutional
rights. Monell v. Dep’t of Soc. Svcs. of the City of New York, 436 U.S. 658 (1978). The
complaint contains details of plaintiff’s alleged mistreatment, but fails to tie them to an
official policy or custom on the part of the Allen County Jail. Without such allegations,
or claims against individual officers, the complaint fails to state a claim. Here again,
plaintiff will be given the opportunity to file an amended complaint that addresses
these deficiencies.
Plaintiff’s fourth claim is against Parkview Behavior Hospital (“Parkview”) for
malpractice in that they failed to admit him during a psychotic episode, after which
point he proceeded to harm himself. (DE # 3 at 3.) To state a claim under § 1983,
plaintiff must allege a violation of rights secured by the Constitution and laws of the
United States, and must show that a person acting under color of state law committed
the alleged deprivation. West v. Atkins, 487 U.S. 42 (1988). As the United States Supreme
Court has defined it, “acting under color of [state] law” entails the “misuse of power,
possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law. . . .” Monroe v. Pape, 365 U.S. 167, 184 (1961)

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(citations omitted). None of the allegations against Parkview suggest a violation of
constitutionally or federally protected rights. Nor is there any allegation that Parkview
was acting under color of state law. Therefore, the complaint fails to state a claim
against Parkview.
Finally, plaintiff brings a claim for discrimination against the Social Security
Administration (“SSA”) in that they denied his claim for benefits in 2009. (DE # 3 at 3.)
A suit against the SSA, a federal agency, would ordinarily be barred absent a waiver of
sovereign immunity. By statute, judicial review of SSA determinations may occur only
“after any final decision of the Commissioner of Social Security made after a hearing to
which he was a party.” 42 U.S.C. § 405(g); see also Jimenez v. Weinberger, 523 F.2d 689, 702
(7th Cir. 1975) (§ 405(g) operates as a waiver of sovereign immunity). The
commissioner’s “final decision” includes two separate elements: (1) “a nonwaivable
requirement that a claim for benefits must be presented to the Secretary”; and (2) “a
waivable requirement of exhaustion of administrative remedies.” Sulie v. Schweiker, 730
F.2d 1069, 1070-71 (7th Cir. 1984). The exhaustion requirement can be excused when the
claimant presents a colorable constitutional challenge. McDonald v. Astrue, 465 Fed.
App’x 554, 556 (7th Cir. 2012). Nothing in the complaint suggests that plaintiff has
exhausted the administrative remedies of the SSA. Moreover, he does not appear to
raise any constitutional challenge. Therefore the requirements of § 405(g) have not been
met, and this claim will be dismissed as well.
For the foregoing reasons, plaintiff’s complaint will be dismissed for failing to

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state a claim upon which relief can be granted unless plaintiff SHOWS CAUSE by July
15, 2016 why this action should not be dismissed. Luevano v. Wal–Mart Stores, Inc., 722
F.3d 1014, 1022 (7th Cir. 2013).
SO ORDERED.
Date: June 7, 2016
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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