MERCADO v. COLUMBUS POLICE DEPARTMENT et al

Filing 5

Entry Discussing Filing Fee, Dismissing Complaint, Denying Motion for Discovery, and Directing Plaintiff to Show Cause - The plaintiff shall have through April 24, 2017, in which to either pay the $400.00 filing fee for this action or demons trate 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 fi ling of this action on March 24, 2017. The plaintiff shall have through April 24, 2017, in which to show cause why this action should not be dismissed for failure to state a claim upon which relief can be granted. If the plaintiff fails to show ca use or seek leave to amend, the action will be dismissed for the reasons set forth in this Entry without further notice. The plaintiff's motion for discovery [dkt. 3 ] is denied as premature and overly broad. If plaintiff seeks discovery of a narrow issue, plaintiff may renew this motion. (See Entry.) Copy to Plaintiff via U.S. Mail. Signed by Judge Tanya Walton Pratt on 3/28/2017.(JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ANGELITO C. MERCADO,
Plaintiff,
vs.
COLUMBUS POLICE DEPARTMENT,
JAMES LEINHOOP MAYOR,
Defendants.

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No. 1:17-cv-00918-TWP-MPB

Entry Discussing Filing Fee, Dismissing Complaint, Denying Motion for Discovery,
and Directing Plaintiff to Show Cause
I. In Forma Pauperis
The plaintiff shall have through April 24, 2017, in which to either pay the $400.00 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 March 24, 2017.
II. Screening of Complaint
The complaint is subject to the screening requirement of 28 U.S.C. § 1915A(b). This
statute directs that the court dismiss a complaint or any claim within a complaint which “(1) is
frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks
monetary relief from a defendant who is immune from such relief.” Id.
The plaintiff, Angelito Mercado (“Mr. Mercado”), filed this civil rights action pursuant to
42 U.S.C. § 1983. He is incarcerated at the Bartholomew County Jail. He names the following

defendants: 1) Columbus Police Department; and 2) Mayor James Leinhoop. He seeks
$100,000.00 in damages.
Mr. Mercado alleges that on November 1, 2016, the Columbus Police Department took a
blood draw from him at the Columbus Regional Hospital without his consent or a warrant. He
alleges this caused emotional distress and loss of liberty.
Mr. Mercado’s allegations could state a viable claim under the Fourth Amendment to the
United States Constitution because blood draws ordered by police qualify as “searches” under
the Fourth Amendment. See Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013). The problem
with Mr. Mercado’s complaint, however, is that he has not named a proper defendant. He has not
identified who participated in any unlawful search.
The Columbus Police Department is not a suable entity. Sow v. Fortville Police Dept.,
636 F.3d 293, 300 (7th Cir. 2011) (“[T]he Indiana statutory scheme does not grant municipal
police departments the capacity to sue or be sued.”). Therefore, any claim against the Columbus
Police Department is dismissed for failure to state a claim upon which relief can be granted.
In addition, there are no allegations of wrongdoing made against the Mayor, nor does it
appear that the Mayor had any involvement in drawing Mr. Mercado’s blood. Any claim against
Mayor Leinhoop is dismissed for failure to state a claim upon which relief can be granted.
“[A] plaintiff can plead himself out of court by alleging facts that show there is no viable
claim.” Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008). For the above reason, the
complaint fails to state a claim upon which relief can be granted as a matter of law and is
therefore dismissed pursuant to 28 U.S.C. § 1915A.

III. Show Cause and Motion for Discovery
The plaintiff shall have through April 24, 2017, in which to show cause why this action
should not be dismissed for failure to state a claim upon which relief can be granted. Luevano v.
Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th Cir. 2013) (plaintiffs should be given at least an
opportunity to amend or to respond to an order to show cause before a case is “tossed out of
court without giving the applicant any timely notice or opportunity to be heard to clarify, contest,
or simply request leave to amend.”).
If the plaintiff fails to show cause or seek leave to amend, the action will be dismissed for
the reasons set forth in this Entry without further notice.
The plaintiff’s motion for discovery [dkt. 3] is denied as premature and overly broad.
If plaintiff seeks discovery of a narrow issue, plaintiff may renew this motion.
IT IS SO ORDERED.

Date: 3/28/2017

Distribution:
ANGELITO C. MERCADO
Bartholomew County Jail
543 2nd Street
Columbus, IN 47201