HOWARD v. MCNUE
ENTRY - 2 Motion for Leave to Proceed in forma pauperis is granted. The clerk is designated pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to defendant Nurse McNue in the manner specified by Rule 4(d). Process shall consist of the compla int, dkt. 1, applicable forms (Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver of Service of Summons), and this Entry. See entry for details. Signed by Judge Tanya Walton Pratt on 11/22/2017. (Copy mailed to Plaintiff and Nurse McNue) (MEJ)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
Entry Granting In Forma Pauperis Status,
Screening Complaint, and
Directing Issuance and Service of Process
I. In Forma Pauperis Status
Plaintiff Lance Howard’s motion for leave to proceed in forma pauperis, dkt. , is
granted. The assessment of even an initial partial filing fee is not feasible at this time.
Notwithstanding the foregoing ruling, plaintiff owes the filing fee. “All [28 U.S.C.] § 1915 has
ever done is excuse pre-payment of the docket fees; a litigant remains liable for them, and for other
costs, although poverty may make collection impossible.” Abdul-Wadood v. Nathan, 91 F.3d 1023,
1025 (7th Cir. 1996).
II. Screening of the Complaint
Plaintiff Lance Howard is an Indiana inmate incarcerated at the New Castle Correctional
Facility. He filed this action on November 17, 2017, pro se and in forma pauperis, naming a single
defendant, Nurse McNue, who is employed at the facility.
Because plaintiff is a prisoner, the complaint is subject to the screening requirements of
28 U.S.C. § 1915A. This statute directs that the court shall 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. 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)); see also Wade v. Hopper, 993 F.2d 1246, 1249
(7th Cir. 1993) (noting that the main purpose of Rule 8 is rooted in fair notice: a complaint “must
be presented with intelligibility sufficient for a court or opposing party to understand whether a
valid claim is alleged and if so what it is.”) (quotation omitted)). 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)). The Court construes pro se pleadings liberally, and holds pro se pleadings to less stringent
standards than formal pleadings drafted by lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2
(7th Cir. 2008).
Allegations in the Complaint
Plaintiff contends that Nurse McNue has been deliberately indifferent to his serious
medical needs when on three occasions in October and November, 2017, she refused to bring him
his inhaler and on one occasion in October when she did bring the inhaler she purposefully rubbed
it on the dirty “cuff port” of his cell door. He contends this violates his Eighth Amendment rights
to be free from cruel and unusual punishment.
The Eighth Amendment claim against Nurse McNue shall proceed as plead. Estelle v.
Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 825, 842 (1994). Although
plaintiff uses the word “retaliation” in describing Nurse McNue’s conduct, the Court finds no
allegations to support a retaliation claim. To state a First Amendment claim for retaliation, a
plaintiff must allege that “(1) he engaged in activity protected by the First Amendment; (2) he
suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the
First Amendment activity was at least a motivating factor in the defendants’ decision to take the
retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.2009) (internal quotation
omitted). No such facts are plead in the complaint.
III. Issuance and Service of Process
The clerk is designated pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to defendant
Nurse McNue in the manner specified by Rule 4(d). Process shall consist of the complaint, dkt. 1,
applicable forms (Notice of Lawsuit and Request for Waiver of Service of Summons and Waiver
of Service of Summons), and this Entry.
IV. Obligation to Update Address
The Court must be able to communicate with pro se parties through the United States mail.
Plaintiff shall report any change of address to the Court, in writing, within ten days of any change.
The failure to keep the Court informed of a current mailing address may result in the dismissal of
this action for failure to comply with Court orders and failure to prosecute.
IT IS SO ORDERED.
New Castle Correctional Facility - Inmate Mail/Parcels
1000 Van Nuys Road
New Castle, In 47362
c/o Wexford Health Sources, Inc.
New Castle Correctional Facility
1000 Van Nuys Road
New Castle, IN 47362
Courtesy Copy to:
Douglass R. Bitner
Katz Korin Cunningham PC
334 N. Senate Avenue
Indianapolis, IN 46204
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