GREENE v. LOCKETT et al
Filing
6
Entry Dismissing Insufficient Claims and Directing Further Proceedings - Claims against the defendants in their official capacities are dismissed. Claims against Warden Charles Lockett are dismissed because this defendant is not alleged to have ha d personal involvement in the treatment of Greene's broken arm. Claims against (1) Nurse Practioner Klink, (2) LPN McKillop, and (3) EMT Drummy, Emergency Medical Technician (EMT) are dismissed as legally insufficient. Greene's claim for injunctive relief is therefore dismissed as moot. No partial final judgment shall issue at this time as to the claim(s) resolved in this Entry. Claims against Dr. Wilson and Physician Assistant McDonald pursuant to the theory recognized in Bivens will proceed. The clerk is designated pursuant to Fed. R. Civ. P. 4(c)(2) to issue process to defendants 1) Dr. Wilson, and 2) Physician Assistant McDonald. Process shall consist of a summons. Personal service is required. (See Entry.) Copies Copy to plaintiff via US Mail. Signed by Judge William T. Lawrence on 2/13/2013.(RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
JERMAINE GREENE,
Plaintiff,
vs.
CHARLES LOCKETT, et al.,
)
)
)
)
)
)
)
2:13-CV-009-WTL-MJD
Defendants.
Entry Dismissing Insufficient Claims
and Directing Further Proceedings
Jermaine Greene was formerly confined at the Federal Correctional Complex
in Terre Haute, Indiana (FCC-Terre Haute). Greene seeks damages and injunctive
relief. and asserts pursuant to the theory recognized in Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 38 (1971), that his Eighth Amendment right to
constitutionally adequate medical care was violated while he was confined at that
institution. His specific claim is that on November 8, 2010, he broke his left arm
and that this injury went untreated until he was finally approved (months later) to
see a specialist, at which time he was immediately transferred to another federal
prison in West Virginia.
The court, having considered the above action and the matters which are
pending, makes the following rulings:
1.
Because the plaintiff is a Aprisoner@ as defined by 28 U.S.C. ' 1915(h),
the court has screened his complaint as required by 28 U.S.C. ' 1915A(b). This
statute requires that any complaint submitted by a prisoner, or any claim within
such a complaint, be dismissed if the complaint or the claim fails to state a claim
upon which relief can be granted. 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).
2.
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.” 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)). Whether a complaint states a claim is a
question of law. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). In applying
this standard, 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). Pro se complaints such as that filed by Greene are
construed liberally and held to a less stringent standard than formal pleadings
drafted by lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).
3.
Applying the foregoing standards, and noting the nature and scope of a
Bivens claim, certain claims must be dismissed as legally insufficient:
a.
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). Accordingly, claims against the defendants in their official
capacities are dismissed.
b.
Claims against Warden Charles Lockett are dismissed because this
defendant is not alleged to have had personal involvement in the treatment of
Greene’s broken arm. 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. . . .@).
c. Claims against (1) Nurse Practioner Klink, (2) LPN McKillop, and (3)
EMT Drummy, Emergency Medical Technician (EMT) are dismissed as
legally insufficient. These defendants are described as the first responders
who had contact with Greene after he broke his arm. These defendants are
alleged to have provided inadequate medical treatment. There is no
allegation that these first responders delayed Greene’s treatment or that they
could or should have done more to treat him.
d.
Greene is no longer confined in the Terre Haute facility or elsewhere in
the State of Indiana. The defendants no longer direct or control any aspect of
Greene’s medical care or access to medical care. Greene’s claim for injunctive
relief is therefore dismissed as moot. Lehn v. Holmes, 364 F.3d 862, 871 (7th
Cir. 2004)("[W]hen a prisoner who seeks injunctive relief for a condition
specific to a particular prison is transferred out of that prison, the need for
relief . . . become[s] moot."); Higgason v. Farley, 83 F.3d 862, 871 (7th Cir.
1996) (same).
4.
No partial final judgment shall issue at this time as to the claim(s)
resolved in this Entry.
5.
Claims against Dr. Wilson and Physician Assistant McDonald
pursuant to the theory recognized in Bivens will proceed. The clerk is designated
pursuant to Fed. R. Civ. P. 4(c)(2) to issue process to defendants 1) Dr. Wilson, and
2) Physician Assistant McDonald. Process shall consist of a summons. 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 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.
02/13/2013
Date: __________________
_______________________________
Distribution:
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
JERMAINE GREENE
Reg. No. 15636-171
PETERSBURG MEDIUM FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 1000
PETERSBURG, VA 23804
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