CLINTON v. MARBERRY et al, No. 2:2011cv00104 - Document 2 (S.D. Ind. 2011)
Court Description: Entry Dismissing Insufficient Claimsand Directing Further Proceedings; legally insufficient claims asserted in the complaint filed by Jacques Clinton are dismissed, while other claims will proceed as directed. Claims against Warden Marberry are dismissed ; No partial final judgment shall issue at this time as to the claims resolved in this Entry; Claims against Lt. Brace and R. Galilion in their individual capacities shall proceed. Clinton shall have through May 31, 2011, to either pay $350.00 filing fee or demonstrate that he lacks financial ability to do so; The clerk shall issue process to these defendants. Process shall consist of a summons. The Marshal for this District or his Deputy shall serve the summo ns, 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) and 4(i)(3) at the expense of the United States. Signed by Judge Jane Magnus-Stinson on 5/5/2011.(see entry for details) (served by us mail)(VS)
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CLINTON v. MARBERRY et al Doc. 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA JACQUES CLINTON, Plaintiff, vs. LT. BRACE, et al., Defendants. ) ) ) ) ) ) ) ) No. 2:11-cv-104-JMS-MJD Entry Dismissing Insufficient Claims and Directing Further Proceedings For the reasons explained in this Entry, legally insufficient claims asserted in the complaint filed by Jacques Clinton are dismissed, while other claims will proceed as directed. I. Clinton is a federal inmate formerly confined at the United States Penitentiary in Terre Haute, Indiana (“USP”). He alleges that while at the USP Officers Brace and Galilion physically injured him in violation of the Eighth Amendment. He seeks redress for this asserted violation of his federally secured rights pursuant to the theory recognized in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 38 (1971), and based on “applicable provisions of Indiana statutory, or common law, or administrative rules.” II. Clinton shall have through May 31, 2011, in which to either pay the $350.00 filing fee for this action or demonstrate that he lacks the financial ability to do so. If he seeks leave to proceed in forma pauperis, his request must be accompanied by a copy of the transactions associated with his institution trust account for the 6-month period preceding the filing of this action on April 18, 2011. III. Clinton’s complaint is subject to screening pursuant to 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). Dockets.Justia.com Having conducted the screening referenced above, the claims against Warden Marberry are dismissed because there is no sufficient allegation of personal involvement by this defendant. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009)( “Because vicarious liability is inapplicable to Bivens . . . suits, a plaintiff must plead that each Governmentofficial defendant, through the official's own individual actions, has violated the Constitution.”). In addition, the Fifth Amendment (due process) claim is dismissed because that is not the constitutional provision invoked by allegations in the complaint. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (“[C]onstitutional claims must be addressed under the most applicable provision.”). No partial final judgment shall issue at this time as to the claims resolved in this Entry. IV. Claims against Lt. Brace and R. Galilion in their individual capacities shall proceed. The clerk shall issue process to these defendants. Process shall consist of a summons. Because the plaintiff is proceeding under the theory recognized in Bivens, personal service is required. Robinson v. Turner, 15 F.3d 82 (7th Cir. 1994). 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) and 4(i)(3) at the expense of the United States. IT IS SO ORDERED. Date: 05/05/2011 Distribution: JACQUES CLINTON 40758-004 EDGEFIELD FEDERAL CORRECTIONAL INSTITUTION Inmate Mail/Parcels P.O. BOX 725 EDGEFIELD, SC 29824 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
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