ISBY-ISRAEL v. LEMMON et al
Entry Concerning Selected Matters - The plaintiff's request to vacate the ruling of March 27, 2013 [Dkt. 33], striking the supplemental complaint, is denied. Plaintiff's "motion for relief from order of sua sponte dismissal and improper substitution of amended complaint" [Dkt. 38] is denied. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 5/22/2013. (RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
BRUCE LEMMON, Commissioner of
IDOC, et al.,
Entry Concerning Selected Matters
The Court, having considered the above action and the matters which are pending, makes
the following rulings:
The plaintiff’s objection to the Entry striking supplemental complaint [Dkt. 33]
has been considered. The plaintiff’s contention that his supplemental complaint alleged no
different claims is not persuasive. As explained in the Court’s ruling of March 27, 2013 (docket
31), in his supplemental complaint the plaintiff attempted to add claims of retaliation, denial of
access to the courts, denial of free exercise of religion, interference with mail and hardcover
books, and denial of hygiene items and medication. Plaintiff also named a number of additional
individuals who allegedly violated his various civil rights. As explained in the Court’s ruling,
unrelated claims against different defendants belong in different lawsuits. The plaintiff’s request
to vacate the ruling of March 27, 2013 [Dkt. 33], striking the supplemental complaint, is denied.
The plaintiff’s “motion for relief from order of sua sponte dismissal and improper
substitution of amended complaint” [Dkt. 38] has been considered. In his motion, the plaintiff
argues that the Court erred in dismissing his claims concerning the grievance process and
international law. He also objects to the Court having treated plaintiff’s “statement of remaining
claims” as the second amended complaint.
In the screening Entry of September 10, 2012 (docket 12), the Court discussed the
plaintiff’s claim that the defendants interfered with the grievance process in an attempt to prevent
him from filing a lawsuit. The plaintiff argues that the Court should have allowed this denial of
access to the courts claim to proceed under the First Amendment. He alleges that the defendants
prevented him from filing grievances by returning and not processing his grievances and by not
giving him the proper forms. As discussed in the screening Entry, these allegations fail to state a
claim upon which relief can be granted. Such allegations might provide the plaintiff with an
effective response to an affirmative defense of failure to exhaust administrative remedies, but
they do not give him a claim that can be vindicated through 42 U.S.C. § 1983. Grieveson v.
Anderson, 538 F.3d 763, 772 (7th Cir. 2008). In addition, the plaintiff was able to file this
lawsuit, so his access to the courts has not been denied under these circumstances.
As to his international law claim, the plaintiff argues that he has a private cause of
action under the Torture Victim Protection Act. That Act states, in part, that “[a]n individual
who, under actual or apparent authority, or color of law, of any foreign nation – (1) subjects an
individual to torture shall, in a civil action, be liable for damages to that individual ….”
Historical and Statutory Notes to 28 U.S.C. § 1350. There is no foreign national defendant
named in this action. Moreover, there is no basis to reach out to international law in a domestic
setting under which the Eighth Amendment provides adequate protection to the plaintiff.
The plaintiff further argues that he was not given adequate notice that his
statement of remaining claims would be treated as his second amended complaint. Plaintiff was
given the opportunity to clarify any and all claims he wished to pursue in this lawsuit. See
Screening Entry of September 10, 2012 (“As discussed in Part II of this Entry, four claims for
relief were identified by the court. If the plaintiff intended to advance additional claims he should
restate such claims in his statement of remaining claims.”). He has shown no prejudice in the
Court’s treatment of his statement of remaining claims.
The plaintiff has failed to show any errors in the Court’s screening Entry. For the
above reasons, the plaintiff’s “motion for relief from order of sua sponte dismissal and improper
substitution of amended complaint” [Dkt. 38] is denied.
IT IS SO ORDERED.
All electronically registered counsel
WABASH VALLEY - CF
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
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