BLANCHARD v. FEDERAL BUREAU OF PRISONS et al

Filing 11

Entry Discussing Complaint and Directing Further Proceedings - Claims against defendants Lappin, Marberry and Lockett are dismissed. The claim against the BOP is also dismissed because it is not a proper defendant in a suit brought pursuant to Bi vens and because of the United States' immunity from suit. No partial final judgment shall issue at this time as to the claim(s) resolved in this Entry. Claims against Ms. J. Beighley and Ms. N-dife shall proceed. The clerk is directed to add "Ms. N-dife" as a defendant. The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(3), to 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. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 8/14/2012.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
RAY BLANCHARD,

)
)
Plaintiff,
)
)
vs.
)
)
THE FEDERAL BUREAU OF
)
PRISONS, et al.,
)
)
Defendants. )

2:11-cv-306-JMS-MJD

Entry Discussing Complaint and Directing Further Proceedings
I.
The complaint is now subject to the screening requirement of 28 U.S.C. §
1915A(b). 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).
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)). To survive a motion to dismiss, the
complaint “must contain sufficient factual matter, accepted as true, to state a claim
to 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,
129 S. Ct. 1937, 1949 (2009) (quotations omitted). Pro se complaints such as that
filed by Ray Blanchard, are construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers. Erickson, 551 U.S. at 94.

II.
Blanchard, a prisoner at the United States Penitentiary in Terre Haute,
Indiana, (“USP-Terre Haute”) sues the Federal Bureau of Prisons, Director Harley
Lappin, Ms. Helen Marberry, Charles Lockett, and J. Beighly in their individual
and official capacities regarding his medical care. His claims are brought pursuant
to the theory recognized in Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971).
Blanchard has named Harley Lappin because he is the director of the Bureau
of Prisons (“BOP”) and thus is allegedly legally responsible for the overall operation
of the BOP including the USP-Terre Haute. Similarly, Helen Marberry and Charles
Lockett were named as defendants because they are allegedly legally responsible for
the operation of USP-Terre Haute and the welfare of all the prisoners housed there.
None of these supervisory defendants are alleged to have personally caused the
medical denial or delay which is alleged in the complaint. In addition, based on
these defendants= positions at the prison, it is apparent that they are not medical
practitioners and their job responsibilities do not include providing direct medical
care to inmates. In addition, merely acting on Blanchard=s grievances, even if that
action was not favorable to his requests, did not cause the underlying denial of
rights Blanchard alleges. The consequence of this is that defendants Lappin,
Marberry and Lockett did not have the personal involvement in any decision
regarding Blanchard’s medical care necessary to support a finding of liability under
a Bivens theory and they must be dismissed. See Ashcroft v. Iqbal, 129 S. Ct. 1937,
1948 (2009) (“Because vicarious 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.”). Claims against defendants
Lappin, Marberry and Lockett are therefore dismissed. The claim against the BOP
is also dismissed because it is not a proper defendant in a suit brought pursuant to
Bivens and because of the United States’ immunity from suit. See FDIC v. Meyer,
510 U.S. 471, 475 (1994)("Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit."); King v. Federal Bureau of Prisons, 415
F.3d 634, 636 (7th Cir. 2005).
No partial final judgment shall issue at this time as to the claim(s) resolved
in this Entry.
III.
Claims against Ms. J. Beighley and Ms. N-dife shall proceed. The clerk is
directed to add “Ms. N-dife” as a defendant.
The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(3), to 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, filed on November 8, 2011, 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.

08/14/2012
Date: __________________
_______________________________

Distribution:

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

Ray Blanchard
39642-037
Terre Haute - FCI
Inmate Mail/Parcels
P.O. Box 33
Terre Haute, IN 47808
United States Marshal
46 East Ohio Street
179 U.S. Courthouse
Indianapolis, IN 46204

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