JENNINGS v. LEMMON et al

Filing 4

ENTRY - Discussing Complaint and Directing Further Proceedings; The plaintiff shall have through December 27, 2012, in which to either pay the $350.00 filing fee for this action or demonstrate that he lacks the financial ability to do so. T he clerk is directed to update the docket to reflect that the State of Indiana and the Putnamville Correctional Facility were dismissed as defendants in this action.The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(3), to issue and ser ve process on the defendants listed in the distribution portion of this Entry in the manner specified by Fed. R. Civ. P. 4(d)(1). Process shall consist of the complaint, applicable forms and this Entry. *** SEE ENTRY FOR FURTHER INFORMATION ***. Signed by Judge Sarah Evans Barker on 12/06/2012. Copies Mailed.(CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
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ROBERT W. JENNINGS,
Plaintiff,
vs.
BRUCE LEMMON, Commissioner;
ELLIS, Correctional Officer; FUGATE,
Correctional Officer; CHARLES
HUGHES, Offender; POWELL,
Offender; UTTERBACK, Offender;
WILLIAMS, Correctional Officer, Shop
Officer; WILLIAMS, Correctional
Officer, Yard Officer; SGT. RADER; MR.
KUMERAN, Case Manager; GARY
HARSTOCK, Classification Supervisor;
JAMES WYNN, Classification
Supervisor; PUTNAMVILLE
CORRECTIONAL FACILITY, INDIANA
DEPARTMENT OF CORRECTION,
STATE OF INDIANA,
Defendants.

No. 1:12-cv-01387-SEB-TAB

Entry Discussing Complaint and Directing Further Proceedings
I.
The plaintiff shall have through December 27, 2012, in which to either pay
the $350.00 filing fee for this action or demonstrate that he lacks the financial
ability to do so. If he seeks leave to proceed in forma pauperis, his request must be
accompanied by a copy of the transactions associated with his institution trust
account for the 6-month period preceding the filing of this action on September 25,
2012.

II.
The complaint is subject to the screening requirement of 28 U.S.C. §
1915A(b). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). 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)). 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). Pro se complaints such as that filed by Robert W.
Jennings, 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).
Jennings filed this civil action based on events which occurred on August 23,
2009, and September 27, 2009, while he was incarcerated at the Putnamville
Correctional Facility. Jennings has named 15 defendants. Jennings’ claims are
brought pursuant to 42 U.S.C. ' 1983. To state a § 1983 claim, 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).
Applying the legal standards set forth above, certain claims shall proceed
while other claims are dismissed, consistent with the following:
•

The claim that defendants Officer Ellis, Officer Fugate, Commissioner
Bruce Lemmon, Sergeant Rader, Case Manager Kumeran,
Classification Supervisor Gary Hartsock, and Supervisor of
Classification James Wynn failed to protect Jennings from attack by
other inmates and/or failed to intervene during the attack in violation
of the Eighth Amendment shall proceed as submitted.

•

The claim that Offender Hughes, Offender Powell and Offender
Utterback assaulted and/or battered Jennings in violation of Indiana
state law shall proceed as submitted. Any Eighth Amendment claim
thought to be brought against these defendants is dismissed because
there is no plausible allegation which suggests that they were acting
under color of state law at the time of the attack.

•

The claims alleged against the State of Indiana, the Indiana
Department of Correction and the Putnamville Correctional Facility
are dismissed because states and their agencies are not “persons”
subject to suit pursuant to 42 U.S.C. § 1983 under the circumstances
alleged in Jenning’s complaint. These principles also compel the
dismissal of § 1983 claims for damages against the defendant state
employees in their official capacity. Omosegbon v. Wells, 335 F.3d 668,
673 (7th Cir. 2003) (the state is not a “person” that can be sued under
42 U.S.C. § 1983).

•

Claims brought pursuant to the Indiana Tort Claims Act may proceed
against the Indiana Department of Correction.
III.

The clerk is directed to update the docket to reflect that the State of
Indiana and the Putnamville Correctional Facility were dismissed as defendants in
this action.
The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(3), to issue and
serve process on the defendants listed in the distribution portion of this Entry in the
manner specified by Fed. R. Civ. P. 4(d)(1). Process shall consist of the complaint,
applicable forms and this Entry.
Jennings has identified Offenders Charles Hughes, Powell and Utterback as
defendants. Jennings is directed to notify the court of additional details sufficient to
identify these individuals and to serve them with process.
IT IS SO ORDERED.
_______________________________

12/06/2012
Date: __________________

SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
BRUCE LEMMON
Commissioner
INDIANA DEPARTMENT OF CORRECTION,
Indiana Department of Correction
E-334, 302 West Washington Street
Indianapolis, IN 46204
ELLIS, Correctional Officer
Putnamville Correctional Facility
1946 West U.S. Hwy 40
Greencastle, IN 46135
FUGATE, Correctional Officer;
Putnamville Correctional Facility
1946 West U.S. Hwy 40
Greencastle, IN 46135
WILLIAMS,
Correctional Officer, Shop Officer;
Putnamville Correctional Facility
1946 West U.S. Hwy 40
Greencastle, IN 46135
WILLIAMS, Correctional Officer, Yard Officer;
Putnamville Correctional Facility
1946 West U.S. Hwy 40
Greencastle, IN 46135
SGT. RADER
Putnamville Correctional Facility
1946 West U.S. Hwy 40
Greencastle, IN 46135
MR. KUMERAN, Case Manager
Putnamville Correctional Facility
1946 West U.S. Hwy 40
Greencastle, IN 46135
GARY HARSTOCK, Classification Supervisor
Putnamville Correctional Facility
1946 West U.S. Hwy 40
Greencastle, IN 46135

JAMES WYNN, Classification Supervisor
INDIANA DEPARTMENT OF CORRECTION,
Indiana Department of Correction
E-334, 302 West Washington Street
Indianapolis, IN 46204
INDIANA DEPARTMENT OF CORRECTION,
Indiana Department of Correction
E-334, 302 West Washington Street
Indianapolis, IN 46204