PARKER v. BUREAU OF PRISONS HEALTH SERVICES DIVISION

Filing 33

Entry Discussing Motion to Amend, Severing Misjoined Claim, and Directing Further Proceedings - The motion to amend, Dkt. No. 29 , is granted. The clerk shall add defendants McCoy, Roger Cox, Nurse Practitioner Blila, and Dr. Andrew Wilson as d efendants. Because the United States is the only proper defendant in an FTCA case, the United States shall be added as a defendant. Generally, if a district court finds that a plaintiff has misjoined parties, the court should sever those pa rties or claims, allowing those grievances to continue in spin-off actions, rather than dismiss them. Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000). This is the remedy that will be applied to the complaint. Therefore, the claim ag ainst Physical Therapist Matchett is severed from the original complaint and a new civil action from the Terre Haute Division shall be opened. Her motion for summary judgment, Dkt. No. 24 , is denied for the present as moot because of the f iling of the Amended Complaint. The clerk shall issue process to defendants McCoy, Cox, Wilson, Blila, and the United States of America. Process shall consist of a summons. The Marshal for this District or his deputy shall serve the summons, the amended complaint, Dkt. No. 29, the attachments thereto, and a copy of this Entry on the officials entitled to notice pursuant to Rule 4 (i) of the Federal Rules of Civil Procedure. This shall be done at the expense of the United States (SEE ENTRY). Signed by Judge William T. Lawrence on 12/15/2017. Copies distributed pursuant to distribution list. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

TERRY ALTON PARKER,
Plaintiff,
vs.
DR. TRUEBLOOD,
Defendant.

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No. 2:17-cv-00256-WTL-MJD

Entry Discussing Motion to Amend, Severing Misjoined Claim,
and Directing Further Proceedings
Terry Parker, an inmate at the Federal Correctional Institution in Terre Haute, Indiana
(“FCI Terre Haute”), brought this action alleging that he has received inadequate medical care
for his heart condition and associated pain. His complaint was screened in the Entry of August
22, 2017. The defendants answered and filed a motion for summary judgment. Parker then filed a
motion to amend on November 22, 2017. The motion to amend, Dkt. No. 29, is granted.
I. Screening Standard
Because the plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915(h), this Court has an
obligation under 28 U.S.C. § 1915A(b) to screen his complaint before service on the defendants.
Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the complaint if it is frivolous or
malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is
immune from such relief. In determining whether the complaint states a claim, the Court applies
the same standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal,

[the] complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face. 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.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints such as that filed by the plaintiff
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).
II. The Claims that Shall Proceed
Parker’s claims in his Amended Complaint are also apparently based on his contention
that he has received inadequate care for his heart condition and associated pain. He alleges that
defendant McCoy refused to provide him with care for his condition and failed to ensure that the
facility had adequate medical staff to meet the needs of the inmates. He further alleges that
Doctors Trueblood and Wilson failed to treat his heart condition and chest pain. In addition, he
alleges that Nurse Practitioner Blila also failed to treat his condition. Finally, he alleges that
Physical Therapist Matchett has failed to treat his injured foot.
Parker names as a defendant Andrew Rupska, but does not state any actions on his part in
the body of the complaint. Accordingly, any claims against Rupska are dismissed. See Sanville
v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001) (A defendant can only be liable for the actions
or omissions in which he personally participated.).
Parker requests that his claims proceed under Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971), the Administrative Procedures Act, or the Federal Tort Claims Act
(“FTCA”). Based on Parker’s assertions and this request, his claims shall proceed under Bivens
and under the FTCA. He has stated no claim under the Administrative Procedures Act because
he has not alleged that the acts at issue were the result of actions on the part of the BOP itself.
See 5 U.S.C. § 702. The Bivens claims shall proceed against the individual defendants in their

individual capacities only. The clerk shall add defendants McCoy, Roger Cox, Nurse
Practitioner Blila, and Dr. Andrew Wilson as defendants. Because the United States is the only
proper defendant in an FTCA case, the United States shall be added as a defendant. Hughes v.
United States, 701 F.2d 56, 58 (7th Cir. 1982).
III. Misjoined Claim
The claim that Physical Therapist Matchett failed to treat Parker’s injured foot cannot
proceed with the other claims in this action. In George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007), the Court of Appeals explained that “[u]nrelated claims against different defendants
belong in different suits.” Rule 18 of the Federal Rules of Civil Procedure allows joinder of
multiple parties only when the allegations against them involve the same conduct or transaction
and common questions of fact and law as to all defendants. Generally, if a district court finds that
a plaintiff has misjoined parties, the court should sever those parties or claims, allowing those
grievances to continue in spin-off actions, rather than dismiss them. Elmore v. Henderson, 227
F.3d 1009, 1012 (7th Cir. 2000). This is the remedy that will be applied to the complaint.
Therefore, the claim against Physical Therapist Matchett is severed from the original
complaint and a new civil action from the Terre Haute Division shall be opened, consistent with
the following:
a.

Terry Parker shall be the plaintiff in the newly opened actions.

b.

The Nature of Suit in the newly opened action shall be 555.

c.

The Cause of Action of the newly opened action shall be 28:1331.

d.
The amended complaint in this action (Dkt. No. 29 and attachments) shall be filed
and re-docketed as the complaint in the newly opened actions.
e.

A copy of this Entry shall be docketed in the newly opened action.

f.
This action and the newly-opened action shall be shown with each other as linked
actions.
g.

The defendant in the newly opened action shall be Physical Therapist Matchett.

i.

The assignment of judicial officers shall be by random draw.
VI. Duty to Update Address

The pro se plaintiff shall report any change of address within ten (10) days of any change.
The Court must be able to locate the plaintiff to communicate with him. If the plaintiff fails to
keep the Court informed of his or her current address, the action may be subject to dismissal for
failure to comply with Court orders and failure to prosecute.
VII. Service of Process
Defendant Trueblood has already appeared and answered. She shall have sixty days to
file an answer to the Amended Complaint. Her motion for summary judgment, Dkt. No. 24, is
denied for the present as moot because of the filing of the Amended Complaint. The defendant
may re-file the motion for summary judgment if and when it is appropriate to do so.
The clerk shall issue process to defendants McCoy, Cox, Wilson, Blila, and the United
States of America. Process shall consist of a summons. The Marshal for this District or his
deputy shall serve the summons, the amended complaint, Dkt. No. 29, the attachments thereto,
and a copy of this Entry on the officials entitled to notice pursuant to Rule 4(i) of the Federal
Rules of Civil Procedure. This shall be done at the expense of the United States.
IT IS SO ORDERED.

Date: 12/15/17

Distribution:

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

TERRY ALTON PARKER
15381045
TERRE HAUTE - USP
TERRE HAUTE U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808
Gina M. Shields
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]