MORRIS v. INDIANA DEPARTMENT OF CORRECTIONS et al

Filing 9

ENTRY Discussing Comoplaint, Dismissing Certain Claims and Directing further proceedings. The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(3), to issue and serve process on defendants Dr. Michael Person, Dr. Christopher Nelson, and Dr. Rich ard Tanner in the manner specified by Fed. R. Civ. P. 4(d)(1). Process shall consist of the complaint, applicable forms and this Entry. (S.E.). Copies mailed. (CRYSTAL HOTTMAN, INDIANA DEPARTMENT OF CORRECTIONS, WENDY KNIGHT (Former Superintendent), DONALD MORRIS, BRIAN SMITH (Superintendent), CORIZON MEDICAL SERVICES and ANDY DUNIGAN terminated). Signed by Judge Tanya Walton Pratt on 12/12/2012.(MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DONALD MORRIS,

)
)
Plaintiff,
)
)
vs.
)
)
INDIANA DEPARTMENT OF
)
CORRECTIONS, et al.,
)
)
Defendants. )

1:12-cv-1207-TWP-DML

Entry Discussing Complaint, Dismissing Certain Claims,
and Directing Further Proceedings
For the reasons explained below, certain claims alleged in the complaint shall
proceed while other claims must be dismissed as legally insufficient.
I.
The 26-page complaint filed by plaintiff Donald Morris has now been
screened as required by 28 U.S.C. § 1915A(b). Pursuant to this statute, “[a]
complaint is subject to dismissal for failure to state a claim if the allegations, taken
as true, show that plaintiff is not entitled to relief.” Jones v. Bock, 127 S. Ct. 910,
921 (2007).
To satisfy the notice-pleading standard of Rule 8 of the Federal Rules of Civil
Procedure, a complaint must provide 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)). To survive a motion to dismiss, the
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,
129 S. Ct. 1937, 1949 (2009) (quotations omitted). Pro se complaints such as that
filed by Donald Morris, are construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers. Erickson, 551 U.S. at 94; Obriecht v.
Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008). Nonetheless, “[p]ro se litigants are
masters of their own complaints and may choose who to sue-or not to sue,” Myles v.
United States, 416 F.3d 551, 552 (7th Cir. 2005), and the court may not rewrite a
complaint to include claims that were not presented. Barnett v. Hargett, 174 F.3d
1128 (10th Cir. 1999; Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993).
The plaintiff’s complaint is brought pursuant to 42 U.S.C. § 1983. To state a
claim under ' 1983, a plaintiff must allege the violation of a right secured by the
Constitution or laws of the United States and must show that the alleged
deprivation was committed by a person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988). A corollary to this rule is that without a predicate
constitutional violation one cannot make out a prima facie case under ' 1983. Juriss
v. McGowan, 957 F.2d 345, 349 n.1 (7th Cir. 1992). In order to be held responsible
for the violation of a federally secured right for which a remedy in damages is
sought pursuant to ' 1983, an individual must have personally participated in the

alleged constitutional deprivation. Zimmerman v. Tribble, 226 F.3d 568, 574 (7th
Cir. 2000).
II.
Applying the standard set forth above, the following claims are dismissed:
1.

Claims of discrimination, retaliation, defamation of character and

denial of due process are dismissed, along with any alleged violations of Morris’s
First, Fifth and Fourteenth Amendment rights. These claims are wholly conclusory
and hence legally insufficient. The complaint “must actually suggest that the
plaintiff has a right to relief, by providing allegations that raise a right to relief
above the speculative level.” Windy City Metal Fabricators & Supply, Inc. v. CIT
Tech. Fin. Servs., 536 F.3d 663, 668 (7th Cir. 2008) (quoting Tamayo v. Blagojevich,
526 F.3d 1074, 1084 (7th Cir. 2008)). As the Supreme Court recently explained, “[a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009)(quoting Twombly, 550 U.S. at 555 & 557).
2.

Claims against the Indiana Department of Correction (IDOC) are

dismissed. Eleventh Amendment immunity bars suits against states and their
agencies regardless of the relief sought, whether damages or injunctive relief.
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996); Pennhurst State School
and Hospital v. Halderman, 465 U.S. 89, 102 (1984). In addition, the claim that the
IDOC is liable because of its unconstitutional policies is rejected. Specifically,

Morris alleges that the IDOC failed to ensure compliance with all statutes, rules
and administrative directives pertaining to the delivery of health care services as
part of a “blanket policy of abuse” and failed to correct constitutional violations
against offenders by medical staff. The claim that the IDOC or Plainfield
Correctional Facility (PCF) has a “blanket policy of abuse” is frivolous. No such
“blanket” policy exists and Mr. Morris has not claimed any facts to support this
conclusory allegation. In addition, the IDOC cannot be held responsible pursuant to
a theory of respondeat superior. West v. Waymire, 114 F.3d 646, 649 (7th Cir. 1997)
(“the doctrine of respondeat superior is not available to a plaintiff in a section 1983
suit”).
3.

Claims against Corizon Medical Services or CMS are dismissed

because CMS is a corporation, and a private corporation is not vicariously liable
under 42 U.S.C. ' 1983 for its employees’ deprivations of others’ civil rights, but can
only be liable if the injury alleged is the result of a policy or practice. Johnson v.
Dossey, 515 F.3d 778, 782 (7th Cir. 2008). This element of a viable claim is absent as
to the claim against CMS because there is no coherent statement of an
unconstitutional policy alleged in the complaint.
4.

Wendy Knight, the former Superintendent of PCF, and Brian Smith,

the current Superintendent of PCF, are dismissed. Morris alleges that Ms. Knight
and Mr. Smith failed to respond to requests and grievances regarding his medical
treatment even though they were “statutorily responsible” for the inmates at PCF.
The alleged failure of these defendants to respond to complaints about the medical

care Morris received is not sufficient to bring them into the zone of liability under '
1983, because “[t]he general responsibility of a warden for supervising the operation
of a prison is not sufficient to establish personal liability.” Estate of Rosenberg v.
Crandell, 56 F.3d 35, 37 (8th Cir. 1995). Morris’s allegations do not suggest a
plausible basis for concluding that these supervisory defendants caused or
participated in the alleged constitutional deprivation. See Wolf-Lillie v. Sonquist,
699 F.2d 864, 869 (7th Cir. 1983).
5.

Claims against Crystal Hottman and Andy Dunigan must be

dismissed for failure to state a claim upon which relief may be granted because
there is no allegation of wrongdoing on their part. See Potter v. Clark, 497 F.2d
1206, 1207 (7th Cir. 1974). There is not even the hint of deliberate indifference on
the part of Hottman or Dunigan in relation to an allegation sufficient to raise
Morris’s right to relief above the speculative level or enough facts to state a claim to
relief that is plausible on its face. See Board v. Farnham, 394 F.3d 469, 478 (7th
Cir. 2005)(A[C]onduct is deliberately indifferent when the official has acted in an
intentional or criminally reckless manner, i.e., the defendant must have known that
the plaintiff was at serious risk of being harmed and decided not to do anything to
prevent that harm from occurring even though he could have easily done
so.@)(quotation marks and citation omitted).
III.
The Eighth Amendment claim of deliberate indifference to a serious
medical need asserted against Dr. Michael Person, Dr. Christopher Nelson,

and Dr. Richard Tanner, shall proceed as submitted. Specifically, this claim is
that the defendant doctors denied Morris constitutionally adequate medical care for
diabetes and associated wounds which resulted in severe pain and in the
amputation of his big toe.
The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(3), to issue and
serve process on defendants Dr. Michael Person, Dr. Christopher Nelson, and Dr.
Richard Tanner in the manner specified by Fed. R. Civ. P. 4(d)(1). Process shall
consist of the complaint, applicable forms and this Entry.
The clerk is directed to terminate all other defendants on the docket
consistent with Part II of this Entry.
IT IS SO ORDERED.
12/12/2012
Date: __________________
Distribution:
Donald Morris
901151
Plainfield - CF
Inmate Mail/Parcels
727 Moon Road
Plainfield, IN 46168

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana
Dr. Michael Person
727 Moon Road
Plainfield, IN 46168
Dr. Christopher Nelson
727 Moon Road
Plainfield, IN 46168
Dr. Richard Tanner
727 Moon Road
Plainfield, IN 46168

Note to Clerk: Processing this document requires actions in addition to docketing and distribution.