BUNNELL v. BUTTS et al
Filing
5
Entry Dismissing Complaint and Directing Filing of Amended Complaint - The plaintiff's motion to proceed in forma pauperis, Dkt. No. 3 , is granted. He is assessed an initial partial filing fee of Nine Dollars and Fifty Cents ($9. 50). He shall have through April 18, 2018, to pay this sum to the clerk. The plaintiff's motion for assistance with recruiting counsel, Dkt. No. 2 is denied as premature. The filing fee has not been paid, the complaint has not been screened , and the defendants have not been served. Defendant Ms. Gibson, as the mail room supervisor, is also dismissed as a defendant. Defendant Keith Butts is dismissed as a defendant. The dismissal of the complaint will not in this instance lead to the dismissal of the action at present. Instead, the plaintiffs shall have through April 18, 2018, in which to file an amended complaint. (Copy to Plaintiff via U.S. Mail) Signed by Judge William T. Lawrence on 3/15/2018. (JDC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RODERICK BUNNELL,
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Plaintiff,
v.
KEITH BUTTS Mr., Warden,
GIBSON Ms., Mailroom Supervisor,
Defendants.
No. 1:18-cv-00772-WTL-TAB
Entry Dismissing Complaint and Directing Filing of Amended Complaint
I.
The plaintiff’s motion to proceed in forma pauperis, Dkt. No. 3, is granted. He is assessed
an initial partial filing fee of Nine Dollars and Fifty Cents ($9.50). He shall have through April
18, 2018, to pay this sum to the clerk.
II.
The plaintiff’s motion for assistance with recruiting counsel, Dkt. No. 2 is denied as
premature. The filing fee has not been paid, the complaint has not been screened, and the
defendants have not been served. The Seventh Circuit has found that “until the defendants respond
to the complaint, the plaintiff's need for assistance of counsel . . . cannot be gauged.” Kadamovas
v. Stevens, 706 F.3d 843, 845 (7th Cir. 2013).
III. Screening
The plaintiff is a prisoner currently incarcerated at New Castle Correctional Facility (“New
Castle”). 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).
IV. The Complaint
Here, the plaintiff alleges he was denied access to the Indiana appellate courts. More
specifically, the plaintiff alleges that the Indiana Supreme Court sent him a notice of defect on
December 4, 2017, notifying him of a defect in the filing of his appellate brief. He said that the
mail room failed to deliver the notice of defect to him in a timely manner such that he could timely
cure the defect.
An access to the courts claim only exists if a prisoner is unreasonably prevented from
presenting legitimate grievances to a court. Thus, when he alleges a denial of the right to access to
the court, he must plead specific prejudice to state a claim, such as by alleging that he missed court
deadlines, failed to make a timely filing, or that legitimate claims were dismissed.
Here, the plaintiff has not alleged any prejudice he suffered based on the mail room’s
alleged late delivery of the notice of defect from the Indiana court. He has failed to “make specific
allegations as to the prejudice suffered because of the defendants’ alleged conduct” and thus his
right to access-to-courts claim is dismissed. Ortloff v. United States, 335 F.3d 652, 656 (7th Cir.
2003). As such, the plaintiff’s access to the court’s claim is dismissed as factually inadequate.
Defendant Ms. Gibson, as the mail room supervisor, is also dismissed as a defendant.
The plaintiff also alleges a claim against defendant Keith Butts based on his status as
Superintendent. The plaintiff does not allege that Butts personally participated in the alleged delay
in the delivery of his mail. Any claims against Keith Butts are dismissed because there is no
specific allegation of wrongdoing on his part. “Where a complaint alleges no specific act or
conduct on the part of the defendant and the complaint is silent as to the defendant except for his
name appearing in the caption, the complaint is properly dismissed.” Potter v. Clark, 497 F.2d
1206, 1207 (7th Cir. 1974); see Black v. Lane, 22 F.3d 1395, 1401 and n.8 (7th Cir. 1994) (district
court properly dismissed complaint against one defendant when the complaint alleged only that
defendant was charged with the administration of the institution and was responsible for all persons
at the institution). To the extent Butts is included as a defendant because of his supervisory
position, this position alone is not adequate to support the imposition of liability. See West v.
Waymire, 114 F.3d 646, 649 (7th Cir. 1997) (“the doctrine of respondeat superior is not available
to a plaintiff in a section 1983 suit”). Defendant Keith Butts is dismissed as a defendant.
Because the Court has been unable to identify a viable claim for relief against any particular
defendant, the complaint is subject to dismissal.
IV. Dismissal of Complaint
The dismissal of the complaint will not in this instance lead to the dismissal of the action
at present. Instead, the plaintiffs shall have through April 18, 2018, in which to file an amended
complaint.
In filing an amended complaint, the plaintiff shall conform to the following guidelines: (a)
the amended complaint shall comply with the requirement of Rule 8(a)(2) of the Federal Rules of
Civil Procedure that pleadings contain “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)); (b) the amended
complaint must include a demand for the relief sought; and (c) the amended complaint must
identify what legal injury they claim to have suffered and what persons are responsible for each
such legal injury. The plaintiff must state his claims “in numbered paragraphs, each limited as far
as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). The plaintiff is further
notified that “[u]nrelated claims against different defendants belong in different suits.” George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007). The plaintiff is directed to identify in the amended
complaint what prejudice he suffered as a result of the alleged delay in receiving the notice
of defect.
Any amended complaint should have the proper case number, 1:18-cv-772-WTL-TAB and
the words “Amended Complaint” on the first page. If an amended complaint is filed as directed
above, it will be screened. If no amended complaint is filed, this action will be dismissed for the
reasons set forth above.
IT IS SO ORDERED.
Date: 3/15/18
_______________________________
Distribution:
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Roderick Bunnell, #874754
New Castle Correctional Facility
Inmate Mail/Parcels
1000 Van Nuys Road
New Castle, IN 47362
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