BIBBS v. WERTMAN et al

Filing 13

ENTRY Screening Complaint and Directing Further Proceedings - The amended complaint, like the original complaint, lacks any facts upon which the court could conclude that any individual defendant was deliberately indifferent to the plaintiff's need for treatment. Accordingly, the individual defendants are dismissed. The complaint alleges a tort claim under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. ("FTCA"). This claim is against the United States only. Hughes v. United States, 701 F.2d 56, 58 (7th Cir. 1982). The clerk is directed to update the docket to show that all other defendants have been dismissed. All other claims have been dismissed. If the plaintiff believes that additional claims were alleged in the complaint, but not identified by the Court he shall have through April 27, 2017, in which to identify those claims. The clerk is directed to issue a single summons to the United States attorney for this district and the Attorney General of the Un ited States at Washington, D.C., pursuant to Fed. R. Civ. P. 4(i)(1). The Marshal for this District is directed to serve the summons and complaint by registered or certified mail at the expense of the United States. (See Entry.) Copy to William Bibbs via U.S. Mail. cc: USM Signed by Judge Tanya Walton Pratt on 4/4/2017.(JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

WILLIAM JEROME BIBBS,
Plaintiff,
vs.
THE UNITED STATES OF AMERICA,
BUREAU OF PRISONS HEALTH
SERVICES AT TERRE HATUE, FCI
SUPERVISOR, DR. SHERMAN, DR.
DANIEL WERTMAN, Dr. ROBERT KING,
Dr. KARL SHULTZ, Dr. GORRIE, Dr.
WILSON, Dr. KOJIMAD,
Defendants.

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Case No. 1:16-cv-03338-TWP-DML

Entry Screening Complaint and Directing Further Proceedings
I.
The plaintiff is a federal prisoner currently incarcerated at Butner Medium II Federal
Correctional Institution. Because the plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915(h),
this Court has an obligation under 28 U.S.C. § 1915A(b) to screen his complaint before service on
the defendants. Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the complaint if it is
frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a defendant
who is immune from such relief. In determining whether the complaint states a claim, the Court
applies the same standard as when addressing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive
dismissal,
[the] complaint must contain sufficient factual matter, accepted as true, to state a
claim for 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, 678 (2009). Pro se complaints such as that filed by the plaintiff
are construed liberally and held to a less stringent standard than formal pleadings drafted by
lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).
II.
A.
In the Entry of January 17, 2017, this Court explained to the plaintiff that he could bring a
Bivens claim against the individual defendants alleging a violation of his Eighth Amendment rights
only if he alleged facts which state a plausible claim for relief. The plaintiff was specifically
instructed to allege what each individual did. He was notified that without allegations of individual
action, the Eighth Amendment claims against the individual defendants must be dismissed. This
is because a defendant can only be liable for the actions or omissions in which he personally
participated. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (“[A] plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.”). The amended complaint, like the original complaint, lacks any facts upon which
the court could conclude that any individual defendant was deliberately indifferent to the plaintiff’s
need for treatment. Accordingly, the individual defendants are dismissed.
B.
The complaint alleges a tort claim under the Federal Tort Claims Act, 28 U.S.C. § 2671, et
seq. (“FTCA”). This claim is against the United States only. Hughes v. United States, 701 F.2d 56,
58 (7th Cir. 1982). The clerk is directed to update the docket to show that all other defendants
have been dismissed.
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C.
The federal tort claims alleged against the United States is the only viable claim identified
by the Court. All other claims have been dismissed. If the plaintiff believes that additional claims
were alleged in the complaint, but not identified by the Court he shall have through April 27,
2017, in which to identify those claims.
III.
The clerk is directed to issue a single summons to the United States attorney for this
district and the Attorney General of the United States at Washington, D.C., pursuant to Fed. R.
Civ. P. 4(i)(1). The Marshal for this District is directed to serve the summons and complaint by
registered or certified mail at the expense of the United States.
IT IS SO ORDERED.

Date: 4/4/2017

Distribution:
United States Marshal
46 East Ohio Street
179 U.S. Courthouse
Indianapolis, IN 46204
WILLIAM JEROME BIBBS
47202-039
BUTNER - MEDIUM II FCI
BUTNER MEDIUM II FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 1500
BUTNER, NC 27509

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