TRAPP v. OLIVER et al

Filing 7

ORDER granting 2 Motion for Leave to Proceed in forma pauperis; and denying 3 5 and 6 Motions for Preliminary Injunction. Claim against Warden Oliver lacks required plausibility. No partial final judgment shall issue at this time as to this claim. Claims against Drs. Wilson, Harvey and Bailey will proceed. Clerk to issue process and the Marshal shall serve the summons. (copy to Plaintiff via US Mail) Signed by Judge Jane Magnus-Stinson on 6/27/2012. (SMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

HOWARD RAY TRAPP, JR.,
Plaintiff,
vs.
JOHN C. OLIVER, Warden, et al.,
Defendants.

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2:12-cv-90-JMS-DKL

Entry Concerning Selected Matters
The court, having considered the above action and the matters which are
pending, makes the following rulings:
1.
The plaintiff’s request to proceed in forma pauperis [2] is granted. The
assessment of even an initial partial filing fee is not feasible at this time.
2.
The plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915(h).
Accordingly, his complaint is now subject to the screening requirement of 28 U.S.C.
§ 1915A(b). This statute directs that the court 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. See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th
Cir. 2006).
3.
The plaintiff complains of inadequate medical care. His claim is
brought pursuant to the theory recognized in Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 38 (1971).
a.
Pursuant to the statute cited above, A[a] complaint must always . . .
allege >enough facts to state a claim to relief that is plausible on its face.=A
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).

b.
The claim against Warden Oliver lacks required plausibility because
there is no claim that this defendant personally refused or impeded any
necessary medical care for the plaintiff and to be liable for a constitutional
violation, an individual must have personally participated in the conduct.
“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.” Id. at 1948.
c.
No partial final judgment shall issue at this time as to the claim(s)
resolved in this Entry.
4.
Claims against Dr. William Wilson, M.D., Dr. Paul Harvey, M.D., and
Dr. Thomas Bailey, M.D. (“the remaining defendants”) will 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.
5.
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 remaining
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.
6.
The plaintiff’s motions for a preliminary injunction [3, 5, 6] are denied.
The court has not acquired in personam jurisdiction over the remaining defendants.
Additionally, a preliminary injunction involving conditions of confinement at a
prison must be “narrowly drawn, extend[ ] no further than necessary to correct the
violation of the Federal right, and is the least intrusive means necessary to correct
the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). The motions for a
preliminary injunction seek relief of such scope that it is highly unlikely this
statutory command could be satisfied.
IT IS SO ORDERED.
06/27/2012
Date: __________________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana