BARRIOS v. MARBERRY et al, No. 2:2010cv00243 - Document 7 (S.D. Ind. 2010)

Court Description: Entry Discussing Complaint, Dismissing Specified Claims, and Directing Further Proceedings; claims against Warden Marberry are dismissed because there is no sufficient allegation of personal involvement by this defendant; the official capacity claim against each defendant is dismissed; No partial final judgment shall issue at this time as to the claims resolved in Part I of this Entry; Claims against Dr. Thomas Webster and Medical Administrator Julie Beighley in their indiv idual capacities shall proceed, clerk is designated, to issue process to these defendants. Process shall consist of a summons; Marshal for this District or his Deputy shall serve the summons, together with a copy of the complaint, filed on September 7, 2010, and a copy of this Entry, on the defendants and on the officials at the expense of the United States. Signed by Judge William T. Lawrence on 11/15/2010.(VS)

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BARRIOS v. MARBERRY et al Doc. 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA WILFREDO BARRIOS, ) ) ) ) ) ) ) ) ) Plaintiff, vs. JULIE BEIGHLEY, Medical Administrator, et al., Defendants. No. 2:10-cv-243-WTL-DML Entry Discussing Complaint, Dismissing Specified Claims, and Directing Further Proceedings Wilfredo Barrios is a federal inmate confined in this District. He alleges in his complaint that he has been denied constitutionally adequate medical care. His complaint is brought pursuant to the theory recognized in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 38 (1971). I. Barrios’ 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). 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 official capacity claim against each defendant is dismissed because any such claim would be barred by the United States’ sovereign immunity. Del Raine v. Williford, 32 F.3d 1024, 1047 (7th Cir. 1994); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Dockets.Justia.com II. No partial final judgment shall issue at this time as to the claims resolved in Part I of this Entry. Claims against Dr. Thomas Webster and Medical Administrator Julie Beighley in their individual capacities shall proceed. The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(3), to 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, filed on September 7, 2010, 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: 11/15/2010 _______________________________ Hon. William T. Lawrence, Judge United States District Court Southern District of Indiana Distribution: WILFREDO BARRIOS 21080-112 FEDERAL CORRECTIONAL INSTITUTION 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

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