ACON v. UNITED STATES OF AMERICA et al

Filing 17

Entry Discussing Amended Complaint and Directing Further Proceedings - The claims against Charles Lockett, Charles Samuels, Jr., A. Rupska, and Kimberly Klink are dismissed as legally insufficient because these officials are not alleged to have had personal involvement in the treatment of Acon's condition or the denial of medication or treatment sought by him. No partial final judgment shall issue at this time as to the claim(s) resolved in this Entry. The clerk is directed to terminat e the United States of America and H.G. Church as defendants on the docket because they were not named as defendants in the amended complaint. Claims against Ms. J. Beighley and Ms. Z. Ndife shall proceed as submitted. The clerk is designated pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to defendants Beighley and Ndife. Process shall consist of a summons. (See Entry.) Copies mailed pursuant to distribution list. Signed by Judge Jane Magnus-Stinson on 9/18/2012.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
GLENN ACON,
Plaintiff,
vs.
MR. CHARLES E. SAMUELS, JR., et
al.,
Defendants.

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2:12-cv-135-JMS-WGH

Entry Discussing Amended Complaint
and Directing Further Proceedings
Glenn Acon is a prisoner at the United State Penitentiary in Terre Haute,
Indiana. Acon alleges that the defendants have been deliberately indifferent to his
serious medical needs. He seeks declaratory judgment, injunctive relief and money
damages. His claims are necessarily brought pursuant to the theory recognized in
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
A[T]he point of Bivens was to establish an action against the employee to
avoid the sovereign immunity that would block an action against the United
States.@1 ABecause 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.@2 “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.3"
Applying the foregoing principles to Acon’s complaint, claims against Charles
Lockett, Charles Samuels, Jr., A. Rupska, and Kimberly Klink are dismissed as
legally insufficient because these officials are not alleged to have had personal
involvement in the treatment of Acon’s condition or the denial of medication or
treatment sought by him.4
Sterling v. United States, 85 F.3d 1225, 1228-29 (7th Cir. 1996); see also F.D.I.C. v. Meyer, 510 U.S.
471, 484-86 (1994); Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003).
2 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).
3 Id.
4 See Hayes v. Snyder, 546 F.3d 516, 527 (7th Cir. 2008)(AThe policy supporting the presumption
that non-medical officials are entitled to defer to the professional judgment of the facility's medical
1

No partial final judgment shall issue at this time as to the claim(s) resolved
in this Entry.
The clerk is directed to terminate the United States of America and H.G.
Church as defendants on the docket because they were not named as defendants in
the amended complaint.
Claims against Ms. J. Beighley and Ms. Z. Ndife shall proceed as submitted.
The clerk is designated pursuant to Fed. R. Civ. P. 4(c)(3) to issue process to
defendants Beighley and Ndife. Process shall consist of a summons. The Marshal for
this District or his Deputy shall serve the summons, together with a copy of the
amended complaint and a copy of this Entry, on these defendants and on the
officials designated pursuant to Fed. R. Civ. P. 4(i)(2), at the expense of the United
States. Personal service is required.
IT IS SO ORDERED.

09/18/2012
Date: __________________
Distribution:
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

GLENN ACON
15217-041
TERRE HAUTE U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808

officials on questions of prisoners' medical care is a sound one.@); Johnson v. Snyder, 444 F.3d 579,
583-84 (7th Cir. 2006)(letters to Director insufficient to create a genuine issue of material fact
regarding personal responsibility of Director, where Director had delegated responsibility for
reviewing grievances, and there was no evidence that Director had read letters).