Rushing v. Elkhart County et al

Filing 11

OPINION AND ORDER DENYING 9 MOTION to Transfer Case filed by Mark Rushing. The Clerk is DIRECTED to place this cause number on a blank Prisoner Complaint form and send it to Rushing. Rushing is GRANTING to and including 5/21/2018 to file an amended complaint and is CAUTIONED that if he does not respond by the deadline, this case is subject to dismissal without further notice for failure to prosecute. Signed by Judge Philip P Simon on 4/26/18. (Copy mailed to pro se party)(ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MARK RUSHING,

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Plaintiff,
v.
ELKHART COUNTY, et al.,
Defendants.

Cause No. 3:18-CV-181 PPS

OPINION AND ORDER
Mark Rushing, a pro se prisoner, filed a complaint in the United States District
Court for the Southern District of Indiana. ECF 1. This case was then transferred here.
ECF 5, 6, 7. Rushing now seeks to have this case transferred back to the Southern
District. ECF 9. However, as Judge Tonya Walton Pratt explained in her order
transferring this case, proper venue is in the Northern District of Indiana, not the
Southern District. ECF 5. And, though Rushing expresses concern about not getting a
fair trial in the state courts around Elkhart or St. Joseph County, that concern is
unfounded, as this case is pending in federal court. I simply do not find any reason to
consider transferring this case to another district or division. See 28 U.S.C. § 1404.
Therefore, this case will stay here.
As to the merits of his complaint, Rushing alleges Officers B. Bush and B.
Fitzgerald of the Elkhart County Sheriff’s Department, have denied him access to the

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courts in connection with his many pending state and federal cases.1 Pursuant to 28
U.S.C. § 1915A, the court must review a prisoner complaint and dismiss it if 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. Courts apply
the same standard under § 1915A as when addressing a motion to dismiss under
FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th
Cir. 2006). Under federal pleading standards,
a complaint must contain sufficient factual matter, accepted as true, to
state a claim to 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, 672 (2009) (quotation marks and internal citations
omitted). Furthermore, “[t]hreadbare recitals of the elements of the cause of action,
supported by mere conclusory statements, do not suffice.” Id. at 678. To survive
dismissal, the plaintiff “must do better than putting a few words on paper that, in the
hands of an imaginative reader, might suggest that something has happened to her that
might be redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir.
2010) (emphasis in original).
In his complaint, Rushing generally alleges that these two officers are
withholding various legal materials and supplies from him, hindering his litigation

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I do recognize that Rushing asks for a stay in all of his thirteen pending cases. ECF 1 at 3. I
cannot grant him that relief in this case. Instead, he must request a stay in each of those cases.

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efforts in thirteen separate cases. To establish a violation of the right to access the
courts, an inmate must show that unjustified acts or conditions (by defendants acting
under color of law) hindered the inmate’s efforts to pursue a non-frivolous legal claim,
Nance v. Vieregge, 147 F.3d 591, 590 (7th Cir. 1998), and that actual injury (or harm)
resulted. Lewis v. Casey, 518 U.S. 343, 351 (1996) (holding that Bounds did not eliminate
the actual injury requirement as a constitutional prerequisite to a prisoner asserting lack
of access to the courts). In other words, “the mere denial of access to a prison law
library or to other legal materials is not itself a violation of a prisoner’s rights; his right
is to access the courts,” and only if the defendants’ conduct prejudices a potentially
meritorious legal claim has the right been infringed. Marshall v. Knight, 445 F.3d 965, 968
(7th Cir. 2006) (emphasis in original).
Here, the complaint does not identify any non-frivolous lawsuit that has been
prejudiced. Instead, Rushing merely lists his 13 pending cases and states, “They are
causing me to miss deadlines resulting in dismissals.” ECF 1 at 2. However, that
statement is too vague to determine if either defendant’s conduct prejudiced any
potentially meritorious legal claim. Rushing has not explained which case has been
prejudiced, specified how that case has been prejudiced, or how that prejudiced case
was otherwise meritorious. Therefore Rushing’s complaint lacks sufficient facts to
adequately plead that the defendants’ conduct have denied him meaningful access to
the courts.

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Because his filing is vague, Rushing will be granted leave to file an amended
complaint. See Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013). In his amended
complaint, he needs to sets forth his claim in sufficient detail and address the
deficiencies raised in this order. In the amended complaint, he should explain in his
own words what happened, when it happened, where it happened, and who was
involved. He may attach any documentation he has in his possession or can obtain
related to his claims.
Accordingly,
(1) the motion (ECF 5) to transfer is DENIED;
(2) the clerk is DIRECTED to place this cause number on a blank Prisoner
Complaint form and send it to Rushing;
(3) Rushing is GRANTED to and including May 21, 2018, to file an amended
complaint; and
(4) Rushing is CAUTIONED that if he does not respond by the deadline, this case
is subject to dismissal without further notice for failure to prosecute.
SO ORDERED on April 26, 2018.
/s/ Philip P. Simon
Judge
United States District Court

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