TOOMBS v. TALBOT et al

Filing 8

Entry Screening Complaint and Directing Further Proceedings. The claims that Paul Talbot has failed to test or treat Toombs's kidney stones and failedto provide him with adequate pain medication shall proceed as a claim that Dr. Talbot has exhib ited deliberate indifference to Toombs's serious medical needs in violation of his Eighth Amendment rights. This summary of remaining claims includes all of the viable claims identified by the Court. All other claims have been dismissed. If the plaintiff believes that additional claims werealleged in the complaint, but not identified by the Court he shall have through December 29, 2017, in which to identify those claims. (Copies sent via U.S. Mail) Signed by Judge William T. Lawrence on 11/28/2017.(JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

TONY TOOMBS,
Plaintiff,
vs.
PAUL TALBOT Dr.,
WEXFORD HEALTH SOURCE INC,
Defendants.

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No. 1:17-cv-03359-WTL-MJD

Entry Screening Complaint and Directing Further Proceedings
I. Screening Standard
Plaintiff Tony Toombs is a prisoner currently incarcerated at the Pendleton Correctional
Facility. 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. The Complaint
Toombs alleges in the complaint that the defendants have denied him testing, pain
medication, and necessary treatment for kidney stones.
III. Discussion of Claims
Applying the screening standard to the factual allegations in the complaint certain claims
are dismissed while other claims shall proceed as submitted.
First, Toombs’s claims against Wexford Health Sources, Inc. must be dismissed because
this defendants is not vicariously liable under 42 U.S.C. § 1983 for the alleged misdeeds of its
employees, but if the injury alleged is the result of a policy or practice. Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816 (7th Cir. 2009). No assertion of that nature is present in the
compendious second amended complaint.
The claims that Paul Talbot has failed to test or treat Toombs’s kidney stones and failed
to provide him with adequate pain medication shall proceed as a claim that Dr. Talbot has
exhibited deliberate indifference to Toombs’s serious medical needs in violation of his Eighth
Amendment rights.
This summary of remaining claims includes all of the viable claims 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 December 29,
2017, in which to identify those claims.

IV. Duty to Update Address
The pro se plaintiff shall report any change of address within ten (10) days of any change.
The Court must be able to locate the plaintiff to communicate with him. If the plaintiff fails to
keep the Court informed of his or her current address, the action may be subject to dismissal for
failure to comply with Court orders and failure to prosecute.
V. Service of Process
The clerk is designated pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to defendant
Dr. Paul Talbot in the manner specified by Rule 4(d). Wexford Health Sources is terminated as
a defendant. Process shall consist of the complaint, applicable forms (Notice of Lawsuit and
Request for Waiver of Service of Summons and Waiver of Service of Summons), and this Entry.
IT IS SO ORDERED.

Date: 11/28/17

_______________________________

Distribution

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Tony Toombs
913171
Pendleton Correctional Facility
4490 West Reformatory Road
PENDLETON, IN 46064
Dr. Paul Talbot
MEDICAL EMPLOYEE
Pendleton Correctional Facility
4490 West Reformatory Road
PENDLETON, IN 46064
Courtesy Copy to:
Douglass Bitner
Katz, Korin, Cunningham
334 North Senate Avenue
Indianapolis, IN 46204-1708