GILES v. BAILEY et al

Filing 8

Entry Screening Amended Complaint, Dismissing Insufficient Claims, and Directing Service of Process - The plaintiff has paid the initial partial filing fee. A collection order will also issue to collect the balance of the filing fee. The Court will now screen the amended complaint filed on October 11, 2016, in accordance with 28 U.S.C. § 1915A(b). The claims that Dr. Bailey, Ms. Gossett, Dr. Southwick, and Dr. Kajimad George were deliberately indifferent to Mr. Giles' serious medica l needs in violation of the Eighth Amendment shall proceed. His state law claims of negligence, malpractice, and intentional and negligent infliction of emotional distress may also proceed. If the plaintiff believes that he asserted any additional claims which were not recognized in this Entry he should notify the Court of this fact by no later than November 15, 2016. The clerk is designated pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure to issue process to defendants Dr. Bailey, Ms. Gossett, Dr. Southwick, and Dr. Kajimad George and the officials designated pursuant to Rule 4(i)(3). The clerk shall update the docket to reflect the dismissal of all defendants except Dr. Bailey, Ms. Gossett, Dr. Southwick, and Dr. Kajimad George. (See Entry.) Copies distributed pursuant to distribution list. Signed by Judge William T. Lawrence on 10/14/2016.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DAMON GILES,

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Plaintiff,
vs.
BAILEY DR.,
WILSON DR.,
GOSSETT MS.,
GENEVIEVE DAUGHTERY,
JULIAN WARDEN,
LEANN LARIVA WARDEN,
Defendants.

No. 2:16-cv-00333-WTL-DKL

Entry Screening Amended Complaint, Dismissing Insufficient Claims,
and Directing Service of Process
I.

Screening

A. Background
The plaintiff has paid the initial partial filing fee. A collection order will also issue to
collect the balance of the filing fee. The Court will now screen the amended complaint filed on
October 11, 2016, in accordance with 28 U.S.C. § 1915A(b).
The plaintiff, Damon Giles (“Mr. Giles”), is a federal inmate confined at the Federal
Correctional Institution in Terre Haute, Indiana. He names the following defendants: 1) Dr.
Bailey; 2) Dr. Wilson; 3) Ms. Gossett; 4) Warden Julian; 5) Warden Lariva; 6) Genevieve
Daugherty; 7) Dr. Southwick; and 8) Dr. Kajimad George. This is a civil rights complaint
brought pursuant to the theory recognized in Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971). Mr. Giles seeks compensatory and punitive damages and injunctive relief.

B. Allegations
Mr. Giles alleges that on or about April 27, 2015, he notified Dr. Bailey of an infected
area on his leg. He alleges that for two months Dr. Bailey and Ms. Gossett failed to provide
treatment and the infection spread to his whole right leg, leaving two holes in his leg. He alleges
he was denied medication and treatment and then later medication was stopped, causing six
blood clots. Mr. Giles alleges that Dr. Southwick was aware of his medical problems but allowed
him to have infected fluids sit on the infected area for weeks. He also alleges that Dr. Kajimad
George put a device in him which has been recalled and could cause death. He alleges violations
of his Fourteenth and Eighth Amendment rights.
Mr. Giles also alleges that Warden Julian, Warden Lariva, and Dr. Wilson have “indirect
participation” and are liable for their subordinates’ actions.
Mr. Giles asserts state law claims of negligence, malpractice, professional misconduct,
intentional and negligent infliction of emotional distress, abuse of process, and failure to protect
from malicious process.
C. Insufficient Claims
Some of Mr. Giles’ claims are legally insufficient, while others will be allowed to
proceed, as discussed below:
The claims against Warden Julian, Warden Lariva, and Dr. Wilson are based on their role
as supervisors of employees’ whose conduct allegedly violated Mr. Giles’ constitutional rights.
Mr. Giles has alleged no facts under which the supervisors could be found liable for the actions
of their employees. “[A] defendant cannot be liable under Bivens on the basis of respondeat
superior or supervisory liability, rather, there must be individual participation and involvement
by the defendant.” Arnett v. Webster, 658 F.3d 742, 757 (7th Cir. 2011).

Although Genevieve Daugherty is listed as a defendant, there are no factual allegations of
wrongdoing against her. Accordingly, any claim against Genevieve Daugherty is dismissed for
failure to state a claim upon which relief can be granted.
Mr. Giles alleges that his Fourteenth Amendment rights have been violated, but no facts
support such a claim. Constitutional claims are to be addressed under the most applicable
provision. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005). Helling v. McKinney, 509
U.S. 25, 31 (1993) (“It is undisputed that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth Amendment.”).
Any state law claims of abuse of process or failure to protect from malicious process are
dismissed for failure to state a claim upon which relief can be granted because under Indiana
law, such a claim requires a showing that a defendant had an ulterior purpose or motive and a
willful act in the use of process which is improper in the regular conduct of a proceeding. Estate
of Mayer v. Lax, Inc., 998 N.E.2d 238, 250 (Ind. Ct. App. 2013). No such facts are alleged in the
amended complaint. The circumstances involved in Mr. Giles’ amended complaint relate to the
denial of medical treatment, not process in the sense intended for abuse of process claims.
No partial final judgment shall issue at this time with respect to the claims dismissed in
this Entry.
D. Claims That Shall Proceed
The claims that Dr. Bailey, Ms. Gossett, Dr. Southwick, and Dr. Kajimad George were
deliberately indifferent to Mr. Giles’ serious medical needs in violation of the Eighth
Amendment shall proceed. His state law claims of negligence, malpractice, and intentional and
negligent infliction of emotional distress may also proceed. 28 U.S.C. § 1367.

If the plaintiff believes that he asserted any additional claims which were not recognized
in this Entry he should notify the Court of this fact by no later than November 15, 2016.
II. Service of Process
The clerk is designated pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure
to issue process to defendants Dr. Bailey, Ms. Gossett, Dr. Southwick, and Dr. Kajimad George
and the officials designated pursuant to Rule 4(i)(3). Process shall consist of a summons, which
shall be served with a copy of the amended complaint filed on October 11, 2016 (docket 7), and
a copy of this Entry by the Marshal for this District or his deputy, at the expense of the United
States.
The clerk shall update the docket to reflect the dismissal of all defendants except Dr.
Bailey, Ms. Gossett, Dr. Southwick, and Dr. Kajimad George.
IT IS SO ORDERED.

Date: 10/14/16

_______________________________

Distribution:

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

DAMON GILES, #64803-112
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.