RIVERA v. LOCKETT et al

Filing 23

Entry Dismissing Insufficient Claims and Directing Further Proceedings - Claims against the BOP are dismissed because the BOP is not a proper defendant in a Bivens action. The claims asserted against LT. Peters, C.O. Penman, Lt. Raney, and Officer Cox (corridor), are dismissed because these defendants are not alleged to have had personal involvement in the mistreatment of the plaintiff. Claims against Lt. Brace, Lt. McPhearson, Officer Wheeler, Officer Booker and Officer Iacinio are dismi ssed for failure to state a claim upon which relief can be granted. No partial final judgment shall issue at this time as to the claims resolved in this Entry. This action shall proceed against defendants Warden Lockett, Warden Marberry, Assista nt Warden Church, Captain Joiner, and Officer Cox (FCI). The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(2), to issue process to defendants Warden Lockett, Warden Marberry, Assistant Warden Church, Captain Joiner, and Officer Cox (FCI). Process shall consist of a summons. Personal service is required. (See Entry.) Copies mailed pursuant to distribution. Signed by Judge Jane Magnus-Stinson on 10/19/2012.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

GUILLERMO RIVERA,
Plaintiff,
vs.
WARDEN LOCKETT, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

2:11-cv-142-JMS-DKL

Entry Dismissing Insufficient Claims
and Directing Further Proceedings
I.
Plaintiff Guillermo Rivera alleges that while housed at the Federal
Correctional Complex in Terre Haute, Indiana his civil rights were violated.
According to the complaint, Senior Special Housing Unit Officer Cox slammed the
food trap door, pinning Rivera’s right hand and causing obvious physical injury.
Rivera’s hand was never treated. In April of 2010, Rivera contacted the FBI and the
United States Attorney General by mail about the assault and battery inflicted on
him at the hands of Officer Cox. After mailing these letters, Warden Marberry
authorized Assistant Warden Church to harass Rivera in retaliation for contacting
the FBI and the Attorney General. Rivera was placed in Special Housing, where he
was been threatened, searched, and groped by BOP employees in front of other
inmates. Defendants Warden Church and Captain Joiner personally participated in
this retaliation. The successor to Warden Marberry, Warden Lockett, continued to
condone the retaliation and subjected Rivera to unconstitutional conditions of
confinement. Rivera seeks money damages.

II.
A.
Rivera’s filing of June 3, 2011, is treated as a supplemental complaint.1
The complaint, as supplemented, is subject to screening pursuant to 28
U.S.C. ' 1915A. Pursuant to §1915A(b), "[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). In applying this
standard, “[a] complaint must always . . . allege ‘enough facts to state a claim to
relief that is plausible on its face.’” Limestone Development Corp. v. Village of
Lemont, Ill., 520 F.3d 797, 803 (7th Cir. 2008) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). AA 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,
129 S. Ct. 1937, 1949 (2009).
"Relief from misconduct by federal agents may be obtained either by a suit
against the agent for a constitutional tort under the theory set forth in Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971), or by a suit against the United
States under the Federal Tort Claims Act [FTCA] . . . which permits claims based
upon misconduct which is tortious under state law. 28 U.S.C. '' 1346(6), 2680."
Sisk v. United States, 756 F.2d 497, 500 n.4 (7th Cir. 1985). Rivera has chosen the
Bivens route. A Bivens action is necessarily brought against individuals in their
individual capacity only. Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-85
(1994).
B.
Applying the standard set forth above, certain claims may proceed while
other claims must be dismissed.
•

Claims against the BOP are dismissed because the BOP is not a proper
defendant in a Bivens action. King v. Federal Bureau of Prisons, 415
F.3d 634, 636 (7th Cir. 2005).

•

The claims asserted against LT. Peters, C.O. Penman, Lt. Raney, and
Officer Cox (corridor), are dismissed because these defendants are not

Rivera incorrectly labeled this filing as the “amended complaint.” But an amended
complaint would completely replace and supersede the original complaint. The June 3,
2011, submission was clearly intended to be a supplement to the complaint and is
understood as such. Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999).
1

alleged to have had personal involvement in the mistreatment of the
plaintiff. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009)(because
Avicarious liability is inapplicable to Bivens . . . suits, a plaintiff must
plead that each Government-official defendant, through the official's
own individual actions, has violated the Constitution@). Without such
an allegation, there can be no recovery. Burks v. Raemisch, 555 F.3d
592, 593-94 (7th Cir. 2009) (ALiability depends on each defendant's
knowledge and actions, not on the knowledge or actions of persons they
supervise. . . .@).
•

The single allegation against Lt. Brace, Lt. McPhearson, Officer
Wheeler, Officer Booker and Officer Iacinio is that they are “personally
responsible for putting me in harms way.” This allegation fails to
allege facts sufficient to raise a right to relief above the speculative
level. Accordingly, claims against Lt. Brace, Lt. McPhearson, Officer
Wheeler, Officer Booker and Officer Iacinio are dismissed for failure to
state a claim upon which relief can be granted.

No partial final judgment shall issue at this time as to the claims resolved in this
Entry.
III.
This action shall proceed against defendants Warden Lockett, Warden
Marberry, Assistant Warden Church, Captain Joiner, and Officer Cox (FCI).
The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(2), to issue process to
defendants Warden Lockett, Warden Marberry, Assistant Warden Church, Captain
Joiner, and Officer Cox (FCI). Process shall consist of a summons. Personal
service is required. The Marshal for this District or his Deputy shall serve the
summons, together with a copy of the complaint filed on May 24, 2011, the
supplement filed on June 3, 2011, and a copy of this Entry, on the designated
defendants and on the officials designated pursuant to Fed. R. Civ. P. 4(i)(2), at the
expense of the United States.
IT IS SO ORDERED.
_______________________________

10/19/2012
Date: __________________

Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Note to Clerk: Processing this document requires actions in addition to docketing and distribution.

Distribution:
United States Marshal
46 East Ohio Street
179 U.S. Courthouse
Indianapolis, IN 46204
Guillermo Rivera
01403-027
Coleman I USP
Inmate Mail/Parcels
P.O. Box 1033
Coleman, FL 33521