Opinion
Case No. 2:16-cv-00101-JMS-DKL
04-11-2016
DANIEL J. KETNER, Plaintiff, v. PUTNAMVILLE CORRECTIONAL FACILITY, BRIAN SMITH, LAW LIBRARY DIVISION, LENA BURROWS, ADMINISTRATION DEPARTMENT, CHRIS WILLIAMS, Defendants.
Entry Dismissing Complaint and Directing Further Proceedings
I.
The plaintiff's motion to proceed in forma pauperis [dkt. 2] is granted. The assessment of even a partial filing fee is not feasible at this time. Notwithstanding the foregoing ruling, the plaintiff owes the filing fee. "All [28 U.S.C.] § 1915 has ever done is excuse pre-payment of the docket fees; a litigant remains liable for them, and for other costs, although poverty may make collection impossible." Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996). Accordingly, a separate order pursuant to 28 U.S.C. § 1915(b) for the collection of the filing fee is being issued.
II. Screening Requirement
Because the plaintiff is a "prisoner" as defined by 28 U.S.C. § 1915(h), the complaint is now subject to the screening requirement of 28 U.S.C. § 1915A(b). This statute directs that the Court dismiss a complaint or any claim within a complaint which "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. 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," which is sufficient to provide the defendant with "fair notice" of the claim and its basis. 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)). The purpose of this requirement is "to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citing Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Wade v. Hopper, 993 F.2d 1246, 1249 (7th Cir. 1993)(noting that the main purpose of Rule 8 is rooted in fair notice: a complaint "must be presented with intelligibility sufficient for a court or opposing party to understand whether a valid claim is alleged and if so what it is.") (quotation omitted)). The complaint "must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level." Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., 536 F.3d 663, 668 (7th Cir. 2008) (quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008)).
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). Nonetheless, "[p]ro se litigants are masters of their own complaints and may choose who to sue-or not to sue," Myles v. United States, 416 F.3d 551, 552 (7th Cir. 2005), and the Court may not rewrite a complaint to include claims that were not presented. Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999); Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993).
The plaintiff's claims are brought pursuant to 42 U.S.C. § 1983. A cause of action is provided by 42 U.S.C. § 1983 against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. Section 1983 is not itself a source of substantive rights; instead, it is a means for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). The initial step in any § 1983 analysis is to identify the specific constitutional right which was allegedly violated. Id. at 394; Kernats v. O'Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994); see also Gossmeyer v. McDonald, 128 F.3d 481, 489-90 (7th Cir. 1997). Here, the plaintiff alleges that the defendants Lena Burrows and Chris Williams are not allowing him to communicate with any court or any attorney in a civil lawsuit. He also alleges the defendants are not permitting him to spend adequate time in the prison law library and are generally interfering with his ability to litigate this legal claims. Finally, the plaintiff alleges the defendants denied him access to the courts in retaliation for filing a grievance against them. The Court construes his claim as a violation of his rights under the First Amendment and a claim for retaliation. He seeks monetary relief and an injunction ordering that he be allowed more time in the law library.
III. Insufficient Claims
A. Putnamville Correctional Facility, the Law Library Division,
and the Administration Department
The plaintiff has named the Putnamville Correctional Facility, the Law Library Division, and the Administration Department. The claims against Putnamville Correctional Facility are dismissed because this facility is not a "person" subject to suit pursuant to 42 U.S.C. § 1983. Similarly, the claims against Law Library Division and the Administration Department are dismissed because a division or department is not a "person" subject to suit under Section 1983. A defendant can only be liable for the actions or omissions in which he personally participated. Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).
B. Superintendent Brian Smith
The plaintiff has also named Superintendent Brian Smith as a defendant. As to Superintendent Smith, there is no suggestion of personal participation in the alleged constitutional deprivation necessary to support a claim under § 1983. Starzenski v. City of Elkhart, 87 F.3d 872, 879 (7th Cir. 1996) ("'An individual cannot be held liable in a [42 U.S.C.] § 1983 action unless he caused or participated in [the] alleged constitutional deprivation.'") (quoting Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)); see Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001) (discussing the requirement of a defendant's personal responsibility to support a viable claim under § 1983 and quoting the requirement of Farmer v. Brennan, 511 U.S. 825, 843-44 (1994), that an official be aware of facts supporting inference of substantial risk of harm and that he actually draw the inference). The supervisory position of Superintendent Smith does not make this defendant liable for misdeeds of employees. Antonelli v. Sheahan, 81 F.3d 1422, 1428 (7th Cir.1996) ("a prisoner may not attribute any of his constitutional claims to higher officials by the doctrine of respondeat superior; the official must actually have participated in the constitutional wrongdoing.") (internal quotations omitted). No personal involvement of this official is alleged. Any claims against Superintendent Smith are dismissed and he is dismissed as a defendant from this action.
C. Access to the Courts
The plaintiff alleges defendants Lena Burrows and Chris Williams denied him access to the courts. The Seventh Circuit has explained:
[T]o state a right to access-to-courts claim and avoid dismissal under Rule 12(b)(6), a prisoner must make specific allegations as to the prejudice suffered because of the defendant's alleged conduct. This is because a right to access-to-courts claim exists only if a prisoner is unreasonable prevented from presenting legitimate grievances to a court; various resources, documents, and supplies merely provide the instruments for reasonable access, and are not protected in and of themselves. Thus, when a plaintiff alleges a denial of the right to access-to-courts, he must usually plead specific prejudice to state a claim, such as by alleging that he missed court deadlines, failed to make timely filing, or that legitimate claims were dismissed because of the denial of reasonable access to legal resources.Ortloff v. United States, 335 F.3d 652, 656 (7th Cir. 2003) (general allegations that destruction of legal papers prejudiced pending lawsuits did not state a claim). There is no "abstract free-standing right to a law library or legal assistance." Lewis v. Casey, 116 S. Ct. 2174, 2179 (1996).
The plaintiff does not describe or allege any prejudice based on his lack of access to the prison law library or to the courts. This claim must therefore be dismissed as legally insufficient because it fails to state a facially plausible claim, meaning a claim with sufficient factual content that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, 129 S. Ct. at 1948.
D. Retaliation
To state a claim for retaliation, the plaintiff needs only to allege that he engaged in conduct protected by the First Amendment, and that the defendants retaliated against him based on that conduct. See Walker v. Thompson, 288 F.3d 1005, 1008-09 (7th Cir. 2002). A complaint states a claim for retaliation when it sets forth "a chronology of events from which retaliation may plausibly be inferred." Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000) (quoting Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988)). "Conversely, alleging merely the ultimate fact of retaliation is insufficient." Murphy, 833 F.2d at 108.
The plaintiff's claims of retaliation are:
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This claim of retaliation does not state a viable legal claim. As the Supreme Court explained, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Twombly, 550 U.S. at 555 & 557.
For the reasons explained above, the complaint fails to survive the screening required by § 1915A because it fails to contain a legally viable claim. Dismissal of the action pursuant to 28 U.S.C. § 1915A(b) is therefore mandatory, Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 775 (7th Cir. 2002).
IV. Opportunity to File Amended Complaint
The dismissal of the complaint will not in this instance lead to the dismissal of the action at present. Instead, the plaintiffs shall have through May 6, 2016, in which to file an amended complaint.
In filing an amended complaint, the plaintiff shall conform to the following guidelines: (a) the amended complaint shall comply with the requirement of Rule 8(a)(2) of the Federal Rules of Civil Procedure that pleadings contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . . ," which is sufficient to provide the defendant with "fair notice" of the claim and its basis. 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)); (b) the amended complaint must include a demand for the relief sought; (c) the amended complaint must identify what legal injury they claim to have suffered and what persons are responsible for each such legal injury; and (d) the amended complaint must include the case number referenced in the caption of this Entry. The plaintiff is further notified that "[u]nrelated claims against different defendants belong in different suits." George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
If an amended complaint is filed as directed above, it will be screened. If no amended complaint is filed, this action will be dismissed for the reasons set forth above.
IT IS SO ORDERED. Date: April 11, 2016
/s/_________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana Distribution: Daniel Ketner, #199397
Putnamville Correctional Facility
Inmate Mail/Parcels
1946 West U.S. Highway 40
Greencastle, IN 46133