IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

RICHARD WAGONER, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 3:14-CV-10

)

COMMISSIONER OF THE INDIANA )

DEPARTMENT OF CORRECTION, )

and INDIANA DEPARTMENT OF )

CORRECTION, )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on the: (1) complaint filed by

Richard Wagoner, by counsel, on January 3, 2014 (DE #1); and (2)

the Application to Proceed in District Court Without Prepaying Fees

or Costs, filed by Richard Wagner, on January 3, 2014 (DE #3). For

the reasons set forth below, the Clerk is ORDERED to DISMISS the

complaint WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915A. 

Additionally, the application to proceed in forma pauperis (DE #3)

is DENIED.

BACKGROUND

Plaintiff, Richard Wagoner, sets outs events in the current

complaint that he alleges occurred after the date a complaint was

filed in another case in this court which was before Magistrate

Judge Christopher Nuechterlein, 3:05-cv-438. His second amended
complaint was filed in that case on September 6, 2011. In that

previous case, Wagoner filed a motion to supplement the complaint

on July 26, 2013 (3:05-cv-438, DE #174), but ultimately, Judge

Nuechterlein granted summary judgment in that case in favor of

Defendants on November 26, 2013, without specifically addressing

the motion to supplement the complaint.

In the current complaint, Wagoner alleges that he is a former

prisoner of the Indiana Department of Correction (“IDOC”), and he

was released in February 2013. He is disabled, and his paraplegia

requires him to use a wheelchair. (DE #1, p. 2.) He alleges that

Defendants, IDOC and the Commissioner of IDOC (“Commissioner”)

discriminated against him on the basis of his disability by, inter

alia, failing to provide him with a proper wheelchair, appropriate

toileting facilities, a properly designed cell, proper sidewalks, 

a weight room and law library , and appropriate medical care during

his stay in jail. (DE #1, pp. 1-10.) He alleges claims under the

Rehabilitation Act, 29 U.S.C. § 794; the American with Disabilities

Act, 42 U.S.C. § 12131-12134; 42 U.S.C. section 1983; and 42 U.S.C.

§ 1985(2). 

DISCUSSION

Under the federal in forma pauperis statute, an indigent party

may commence an action in federal court, without prepayment of

costs and fees, upon submission of an affidavit asserting an

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inability “to pay such costs or give security therefor.” 28 U.S.C.

§ 1915(a)(1). Here, Wagoner asserts that he receives approximately

$1,665 per month from social security and $150 per month from his

family members. (DE #3.) Based on this income information, his

annual income is around $21,780, and that is above the financial

eligibility for in forma pauperis status. See HHS Poverty

Guidelines, 79 Fed. Reg. 3593 (Jan. 22, 2014) (setting the poverty

level at $11,670 per year for a single individual).

The inquiry does not end there, however. The Court has an

obligation under 28 U.S.C. § 1915(e)(2)(B) to screen complaints,

and 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. Dismissal under the in

forma pauperis statute is an exercise of the court’s discretion. 

Denton v. Hernandez, 504 U.S. 25, 33-34 (1992). 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 under federal

pleading standards,

[the] complaint must contain sufficient factual matter,

accepted as true, to state a claim to 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) (quotations omitted). 

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Thus, a “plaintiff must do better than putting a few words on paper

that, in the hands of an imaginative reader, might suggest that

something has happened to her that might be redressed by the law.” 

Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010)

(emphasis in original).

Wagoner’s complaint lists the Indiana Department of Correction

(“IDOC”) as a Defendant. The Constitution’s Eleventh Amendment

provides: “The Judicial Power of the United States shall not be

construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign State.” The

Eleventh Amendment bars “a suit by a citizen against the citizens

own State in Federal Court.” Johns v. Stewart, 57 F.3d 1544, 1552

(10th Cir. 1995). The Eleventh Amendment’s jurisdictional bar

extends to state agencies, such as the Indiana Department of

Correction, as well as to the State itself. Kashani v. Purdue

Univ., 813 F.2d 843 (7th Cir. 1987). A State may elect to waive

its Eleventh Amendment immunity, but Indiana hasn’t done so.

Meadows v. State of Indiana, 854 F.2d 1068, 1069 (7th Cir. 1988).

Accordingly, the Court will dismiss IDOC from this action.

Wagoner also “sues the Commissioner in the Commissioner’s

official capacity for actions taken under color of any statute,

ordinance, regulation, custom, or usage, of Indiana by the

Commissioner . . . .” (DE #1, p. 3.) The Eleventh Amendment

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precludes action against such officials for damages in their

official capacities. See Kentucky v. Graham, 473 U.S. 159, 167

(1985); Meadows, 854 F.2d at 1069. State officials, in their

official capacities, are not “persons” within the meaning of

section 1983. Will v. Michigan Department of State Police, 491

U.S. 58, 71 (1989). As such, the Commissioner, sued in his

official capacity, is also dismissed from the action.

CONCLUSION

For the reasons set forth below, the Clerk is ORDERED to

DISMISS the complaint WITHOUT PREJUDICE pursuant to 28 U.S.C. §

1915A. Additionally, the application to proceed in forma pauperis

(DE #3) is DENIED.

DATED: April 14, 2014 /s/ RUDY LOZANO, Judge

United States District Court

 

 

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