ZINERMAN-BEY v. CENTURION

• Court: District Court, S.D. Indiana
• Decided: November 3, 2023
• Docket: 1:23-cv-01137
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

JUAN ZINERMAN-BEY, ) ) Plaintiff, ) ) v. ) No. 1:23-cv-01137-TWP-TAB ) CENTURION, ) ) Defendant. )

Order Dismissing Complaint and Directing Filing of Amended Complaint Plaintiff Juan Zinerman-Bey is a prisoner currently incarcerated at Correctional Industrial Facility. He alleges that the defendant violated his constitutional rights by failing to provide prompt medical attention after a screw protruded through the skin on his ankle. Because the plaintiff is a "prisoner," this Court has an obligation to screen the complaint before service on the defendants. 28 U.S.C. § 1915A(a), (c). I. Screening Standard When screening a complaint, the Court must dismiss any portion that is frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). To determine 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 Schillinger v. Kiley, 954 F.3d 990, 993 (7th Cir. 2020). Under that standard, a complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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). The Court construes pro se complaints liberally and holds them to a "less stringent standard than formal pleadings drafted by lawyers." Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017). II. The Complaint

The complaint names Centurion Medical Staff as the sole defendant and makes the following allegations. While showering on March 28, 2023, Mr. Zinerman-Bey noticed a screw coming through the skin on his right ankle. He informed Sgt. Cole who called medical staff and was told that Mr. Zinerman-Bey should fill out a healthcare request form. He received no treatment until April 9, 2023. While waiting for treatment he experienced bleeding, swelling, and extreme pain. He did not receive antibiotics or pain medication and it took three months before he was sent to an orthopedic specialist. He seeks damages for pain and suffering. III. Dismissal of Complaint Applying the screening standard to the facts alleged in the complaint, the complaint must be dismissed for failure to state a claim upon which relief may be granted. First, Mr. Zinerman-

Bey has not named as a defendant any "person" who is allegedly responsible for violating his rights. Centurion medical staff is a group of people, but a group of people is not a "person" subject to suit under Section 1983. Second, to the extent Mr. Zinerman-Bey intended to sue Centurion rather than its employees, such claim can only proceed with allegations that the plaintiff was harmed by a policy or widespread practice of Centurion. Simpson v. Brown County, 860 F.3d 1001, 1005-6 (7th Cir. 2017) (citing Monell v. Dep't of Social Services, 436 U.S. 658, 690-91 (1978)). The complaint makes no such allegation. Because the Court has been unable to identify a viable claim for relief against any particular defendant, the complaint is subject to dismissal. IV. Opportunity to File an Amended Complaint The dismissal of the complaint will not in this instance lead to the dismissal of the action

at present. "The usual standard in civil cases is to allow defective pleadings to be corrected, especially in early stages, at least where amendment would not be futile." Abu-Shawish v. United States, 898 F.3d 726, 738 (7th Cir. 2018). In the interest of justice, the court will allow plaintiff to amend his complaint if, after reviewing this court's order, he believes that he can state a viable claim for relief, consistent with the allegations he has already made. See Tate v. SCR Med. Transp., 809 F.3d 343, 346 (7th Cir. 2015) ("We've often said that before dismissing a case under 28 U.S.C. § 1915(e)(2)(B)(ii) a judge should give the litigant, especially a pro se litigant, an opportunity to amend his complaint."); Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013). The plaintiff shall have through November 27, 2023, to file an amended complaint. The amended complaint must (a) contain a short and plain statement of the claim showing

that the plaintiff is entitled to relief, which is sufficient to provide the defendant with fair notice of the claim and its basis; (b) include a demand for the relief sought; and (c) identify what injury he claims to have suffered and what persons are responsible for each such injury. Any amended complaint should have the proper case number, 1:23-cv-01137-TWP-TAB, and the words "Amended Complaint" on the first page. The amended complaint will completely replace the original. See Beal v. Beller, 847 F.3d 897, 901 (7th Cir. 2017) ("For pleading purposes, once an amended complaint is filed, the original complaint drops out of the picture."). Therefore, it must set out every defendant, claim, and factual allegation the plaintiff wishes to pursue in this action. If the plaintiff files an amended complaint, it will be screened pursuant to 28 U.S.C. § 1915A(b). If no amended complaint is filed, this action will be dismissed without further notice or opportunity to show cause. IT IS SO ORDERED. Date: 11/3/2023 A \ ) 0) th nw Hon. Tanya Walton Pratt, Chief Judge United States District Court Southern District of Indiana

Distribution: JUAN ZINERMAN-BEY 174433 PENDLETON - CORRECTIONAL INDUSTRIAL FACILITY CORRECTIONAL INDUSTRIAL FACILITY Inmate Mail/Parcels 5124 West Reformatory Road PENDLETON, IN 46064