CLINTON v. MARBERRY et al
Filing
2
Entry Dismissing Insufficient Claimsand Directing Further Proceedings; legally insufficient claims asserted in the complaint filed by Jacques Clinton are dismissed, while other claims will proceed as directed. Claims against Warden Marberry are dismissed ; No partial final judgment shall issue at this time as to the claims resolved in this Entry; Claims against Lt. Brace and R. Galilion in their individual capacities shall proceed. Clinton shall have through May 31, 2011, to either pay $350.00 filing fee or demonstrate that he lacks financial ability to do so; The clerk shall issue process to these defendants. Process shall consist of a summons. The Marshal for this District or his Deputy shall serve the summo ns, together with a copy of the complaint and a copy of this Entry, on the defendants and on the officials designated pursuant to Fed. R.Civ. P. 4(i)(2) and 4(i)(3) at the expense of the United States. Signed by Judge Jane Magnus-Stinson on 5/5/2011.(see entry for details) (served by us mail)(VS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
JACQUES CLINTON,
Plaintiff,
vs.
LT. BRACE, et al.,
Defendants.
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No. 2:11-cv-104-JMS-MJD
Entry Dismissing Insufficient Claims
and Directing Further Proceedings
For the reasons explained in this Entry, legally insufficient claims asserted in the
complaint filed by Jacques Clinton are dismissed, while other claims will proceed as
directed.
I.
Clinton is a federal inmate formerly confined at the United States Penitentiary in
Terre Haute, Indiana (“USP”). He alleges that while at the USP Officers Brace and Galilion
physically injured him in violation of the Eighth Amendment. He seeks redress for this
asserted violation of his federally secured rights pursuant to the theory recognized in
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 38 (1971), and based on
“applicable provisions of Indiana statutory, or common law, or administrative rules.”
II.
Clinton shall have through May 31, 2011, in which to either pay the $350.00 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 April 18, 2011.
III.
Clinton’s complaint is subject to screening pursuant to 28 U.S.C. § 1915A(b). This
statute requires that any complaint submitted by a prisoner, or any claim within such a
complaint, be dismissed if the complaint or the claim fails to state a claim upon which relief
can be granted. Pursuant to this statute, "[a] complaint is subject to dismissal for failure to
state a claim if the allegations, taken as true, show that plaintiff is not entitled to relief."
Jones v. Bock, 127 S. Ct. 910, 921 (2007).
Having conducted the screening referenced above, the claims against Warden
Marberry are dismissed because there is no sufficient allegation of personal involvement
by this defendant. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009)( “Because vicarious
liability is inapplicable to Bivens . . . suits, a plaintiff must plead that each Governmentofficial defendant, through the official's own individual actions, has violated the
Constitution.”). In addition, the Fifth Amendment (due process) claim is dismissed
because that is not the constitutional provision invoked by allegations in the complaint. See
Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (“[C]onstitutional claims must be
addressed under the most applicable provision.”).
No partial final judgment shall issue at this time as to the claims resolved in this
Entry.
IV.
Claims against Lt. Brace and R. Galilion in their individual capacities shall proceed.
The clerk shall issue process to these defendants. Process shall consist of a summons.
Because the plaintiff is proceeding under the theory recognized in Bivens, personal
service is required. Robinson v. Turner, 15 F.3d 82 (7th Cir. 1994). The Marshal for this
District or his Deputy shall serve the summons, together with a copy of the complaint and
a copy of this Entry, on the defendants and on the officials designated pursuant to Fed. R.
Civ. P. 4(i)(2) and 4(i)(3) at the expense of the United States.
IT IS SO ORDERED.
Date: 05/05/2011
Distribution:
JACQUES CLINTON
40758-004
EDGEFIELD
FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 725
EDGEFIELD, SC 29824
United States Marshal
46 East Ohio Street
179 U.S. Courthouse
Indianapolis, IN 46204
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
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