Newman v. Hernia Mesh Company
INITIAL Review Order granting 1 Pro Se Application to proceed in forma pauperis. Clerk of Court shall file the complaint as a new entry without the prepayment of the filing fee. Prisoner Jeff Newman pay Initial Filing Fee in the Amount of $ 6.31 by 8/11/2017. Plaintiff's action is dismissed. The dismissal of this case counts against plaintiff for purposes of the three-dismissal rule. The clerk's office is directed to enter judgment in favor of the defendant. Signed by Chief Judge Leonard T Strand on 7/13/2017. (copy w/nef and appeal packet to non-ecf plaintiff; copy w/nef to Warden/Administrator) (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
INITIAL REVIEW ORDER
HERNIA MESH COMPANY,
This case is before me on plaintiff’s application to proceed in forma pauperis (Doc.
No. 1), filed July 10, 2017. Along with his application, plaintiff submitted a complaint
under 42 U.S.C. § 1983 (Doc. No. 1-1).
II. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
Plaintiff did not submit the statutory filing fee. See 28 U.S.C. § 1914(a) (requiring
filing fee). In order for a court to authorize the commencement of an action without the
prepayment of the filing fee, a person must submit an affidavit that includes a statement
of all the assets the person possesses. See 28 U.S.C. § 1915(a)(1). In addition, a prisoner
must submit a certified copy of the trust fund account statement (or institutional
equivalent) for the 6-month period immediately preceding the filing of the complaint,
obtained from the appropriate official of each prison at which the prisoner was or is
confined. See 28 U.S.C. § 1915(a)(2). Based on plaintiff’s application, it is clear that
plaintiff does not have sufficient funds to pay the required filing fee. Thus, plaintiff’s
application to proceed in forma pauperis status is granted. See generally 28 U.S.C. §
1915. The clerk’s office is directed to file plaintiff’s complaint without the prepayment
of fees and costs.
A prisoner bringing a civil action in forma pauperis is required to pay the full
$350.00 filing fee. See 28 U.S.C. § 1915(b)(1). The full filing fee will be collected
even if the court dismisses the case because it is frivolous or malicious, fails to state a
claim on which relief may be granted or seeks money damages against a defendant who
is immune from such relief.
See 28 U.S.C. § 1915(e)(2).
Because I deemed it
appropriate to grant plaintiff in forma pauperis status, plaintiff is required to pay the full
filing fee by making payments on an installment basis. See 28 U.S.C. § 1915(b)(1); see
also In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997) (“[T]he [Prisoner Litigation
Reform Act] makes prisoners responsible for their filing fees the moment the prisoner
brings a civil action or files an appeal.”).
Concerning the computation of the initial partial filing fee, plaintiff is required to
submit 20 percent of the greater of his average monthly account balance or average
monthly deposits for the six months preceding the filing of the complaint. See 28 U.S.C.
§ 1915(b)(1). Based on the information that plaintiff provided, I find that the initial
partial filing fee is $6.31. Id. Plaintiff is directed to submit $6.31 by no later than
August 11, 2017. Id. If necessary, plaintiff may request in a written motion an extension
of time to pay the initial partial filing fee.
In addition to the initial partial filing fee, plaintiff must “make monthly payments
of 20 percent of the preceding month’s income credited to the prisoner’s account.” 28
U.S.C. § 1915(b)(2). The statute places the burden on the prisoner’s institution to collect
the additional monthly payments and forward them to the court. Specifically,
[a]fter payment of the initial partial filing fee, the prisoner shall be required
to make monthly payments of 20 percent of the preceding month’s income
credited to the prisoner’s account. The agency having custody of the
prisoner shall forward payments from the prisoner’s account to the clerk of
the court each time the amount in the account exceeds $10 until the filing
fees are paid.
28 U.S.C. § 1915(b)(2). Therefore, after plaintiff pays in full the initial partial filing
fee, the institution having custody of plaintiff is directed to collect the remaining
installments. Id. The clerk’s office is directed to send a copy of this order and the notice
of collection of filing fee to the appropriate official at the place where plaintiff is an
III. STANDARD OF REVIEW
A pro se complaint must be liberally construed. See Hughes v. Rowe, 449 U.S.
5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Smith v. St.
Bernards Reg’l Med. Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994); see also Stone v. Harry,
364 F.3d 912, 914 (8th Cir. 2004) (explaining that, although pro se complaints must be
liberally construed, they must allege sufficient facts to support the claims that are
advanced). In addition, unless the facts alleged are clearly baseless, they must be weighed
in favor of the plaintiff. See Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). A court,
however, can dismiss at any time a complaint filed in forma pauperis if the complaint is
frivolous, malicious, fails to state a claim on which relief may be granted or seeks
monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §
1915(e)(2); 28 U.S.C. § 1915A(b)(1).
A claim is “frivolous” if it “lacks an arguable
basis in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); accord Cokeley
v. Endell, 27 F.3d 331, 332 (8th Cir. 1994). An action fails to state a claim upon which
relief can be granted if it does not plead “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).
Accordingly, a court may review the complaint and dismiss sua sponte those claims that
fail “‘to raise a right to relief above the speculative level. . . .’”, Parkhurst v. Tabor,
569 F.3d 861, 865 (8th Cir. 2009) (quoting Bell Atl., 550 U.S. at 555), or that are
premised on meritless legal theories or clearly lack any factual basis, see Neitzke, 490
U.S. at 325. See, e.g., Denton v. Hernandez, 504 U.S. at 27 (considering frivolousness);
Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (concluding that a district court may
dismiss an action if an affirmative defense exists).
Plaintiff, proceeding pro se, submitted a complaint under 42 U.S.C. § 1983 to
redress issues that are related to his confinement. Jurisdiction is predicated on 28 U.S.C.
§ 1343. Under 28 U.S.C. § 1391(b), venue appears to be proper. The statement of
claim portion of the complaint indicates the following:
I went to Iowa City Hospital and they did surgery on me plus put the hernia
mesh in my umbilical cord navel and my stomach. . . . Years have went
by since the hernia mesh implant surgery. Now, when I squat where the
hernia mesh surgery was done, my stomach hurt[s] plus, when I poop, it
hurts every now and then.
Additionally, plaintiff, among other things, makes clear in his statement of claim
attachment that he believes his constitutional rights have been violated by the Hernia
Mesh Company as a result of its failure to provide information about its surgical mesh
and/or malpractice and explains why he believes compensatory and punitive damages
should be awarded. As relief, plaintiff states that he wants to be awarded $1,000,000 in
compensatory damages and $1,000,000 in food stamps.
Plaintiff also asks that he be
referred to a company or doctor that knows how to fix his stomach implant problem.
A. Claims Under 42 U.S.C. § 1983
Title 42 U.S.C. § 1983 provides, in relevant part:
Every 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, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress . . .
42 U.S.C. § 1983 was designed to provide a “broad remedy for violations of federally
protected civil rights.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 685 (1978).
However, 42 U.S.C. § 1983 provides no substantive rights. See Albright v. Oliver, 510
U.S. 266, 271 (1994); Graham v. Conner, 490 U.S. 386, 393-94 (1989); Chapman v.
Houston Welfare Rights Org., 441 U.S. 600, 617 (1979). “One cannot go into court and
claim a ‘violation of [42 U.S.C.] § 1983’ — for [42 U.S.C.] § 1983 by itself does not
protect anyone against anything.” Chapman, 441 U.S. at 617. Rather, 42 U.S.C. §
1983 provides a remedy for violations of all “rights, privileges, or immunities secured
by the Constitution and laws [of the United States].” 42 U.S.C. § 1983; see also
Albright, 510 U.S. at 271 (42 U.S.C. § 1983 “merely provides a method for vindicating
federal rights elsewhere conferred.”); Graham, 490 U.S. at 393-94 (same); Maine v.
Thiboutot, 448 U.S. 1, 4 (1980) (“Constitution and laws” means 42 U.S.C. § 1983
provides remedies for violations of rights created by federal statute, as well as those
created by the Constitution.). To state a claim under 42 U.S.C. § 1983, a plaintiff must
establish: (1) the violation of a right secured by the Constitution or laws of the United
States and (2) the alleged deprivation of that right was committed by a person acting
under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
B. Plaintiff’s Claim
It is clear that “[42 U.S.C. §] 1983 secures most constitutional rights from
infringement by governments, not private parties.”
Crumpley-Patterson v. Trinity
Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004) (citing Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 349 (1974)); see also Youngblood v. Hy-Vee Food Stores,
Inc., 266 F.3d 851, 855 (8th Cir. 2001) (“Only state actors can be held liable under
Section 1983.” (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970))); Sanders
v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir. 1993) (explaining that “§ 1983
secures most constitutional rights from infringement by governments, not private
parties”). “If the action of [a defendant] was purely private action, then [42 U.S.C. §]
1983 affords no basis for federal jurisdiction and [the claim must be] dismissed for lack
of subject matter jurisdiction.” Lubin v. Crittenden Hosp. Ass’n., 713 F.2d 414, 415
(8th Cir. 1983); see also Alexander v. Pathfinder, Inc., 189 F.3d 735, 740 (8th Cir.
1999) (concluding that a plaintiff could not assert equal protection claims under 42 U.S.C.
§ 1983 because a private corporation was not a state actor).
A private party, however, can be held liable under 42 U.S.C. § 1983 if it acts
under color of state law. See Crumpley-Patterson, 388 F.3d at 590. Acts of a private
party are “fairly attributable to the State” so as to be deemed under “color of state law”
for 42 U.S.C. § 1983 purposes “if, though only if, there is such a ‘close nexus between
the State and the challenged action’ that seemingly private behavior ‘may be fairly treated
as that of the State itself.’” Brentwood Acad. v. Tennessee Secondary Sch. Ass’n, 531
U.S. 288, 295 (2001) (quoting Jackson, 419 U.S. at 351). “The mere fact that a business
is subject to state regulation does not by itself convert its action into that of the State . .
. [even though] the regulation is extensive and detailed.” Jackson, 419 U.S. at 350.
Given the alleged facts, I find that plaintiff’s assertions do not give rise to a viable
claim under 42 U.S.C. § 1983. Plaintiff fails to aver that defendant was a state actor or
acting under color of state law when his rights were allegedly violated; plaintiff’s
allegations do not establish state action. Defendant is a private company, and its conduct
may not be fairly attributed to the State. Cf. Hoyt v. St. Mary’s Rehab. Ctr., 711 F.2d
864, 866-67 (8th Cir. 1983) (stating that “[m]any decisions in our society, right or wrong,
simply must be left to the good judgment and discretion of private individuals, including
physicians and other professionals, subject to whatever statutes or regulations may validly
be issued by one or another level of government” and concluding that no state action
existed); Dunn v. Hackworth, 628 F.2d 1111, 1112 (8th Cir. 1980) (concluding that
plaintiff failed to state a legally cognizable claim under 42 U.S.C. § 1983 because
allegations pertaining to private individual did not show that state action was involved).
Because defendant cannot be considered a state actor so as to invoke federal jurisdiction
under 42 U.S.C. § 1983, plaintiff fails to state a claim upon which relief can be granted.
Moreover, “[liability under 42 U.S.C. § 1983 may be imposed] for violations of
rights protected by the Constitution, not for violations of duties of care arising out of tort
law.” Baker v. McCollan, 443 U.S. 137, 146 (1979). An inadequate medical care claim
is governed by the Eighth Amendment deliberate-indifference standard. See Jackson v.
Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014).
Whether an official was deliberately indifferent requires both an objective
and a subjective analysis. Scott v. Benson, 742 F.3d 335, 339-40 (8th Cir.
2014). Under the objective prong, [the plaintiff] must establish that he
suffered from an objectively serious medical need. See id. at 340. To be
objectively serious, a medical need must have been “diagnosed by a
physician as requiring treatment” or must be “so obvious that even a
layperson would easily recognize the necessity for a doctor’s attention.”
Id. (quoting Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997)). Under
the subjective prong, [the plaintiff] must show that an official “actually
knew of but deliberately disregarded his serious medical need.” Id. This
showing requires a mental state “akin to criminal recklessness.” Id.
(quoting Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006)).
Consequently, [the plaintiff] must show “more than negligence, more even
than gross negligence” to evince deliberate indifference. [Fourte v.
Faulkner Cty., 746 F.3d 384, 387 (8th Cir. 2014)] (quoting [Jolly, 205 F.3d
Id. at 1065; accord Phillips v. Jasper Cty. Jail, 437 F.3d 791, 795 (8th Cir. 2006).
Plaintiff acknowledges that he received medical treatment, including a surgery
years ago, and merely alleges product liability and/or medical malpractice. But, it is
well-established that mere disagreement with the treatment received does not constitute
See Jones v. Norris, 310 F.3d 610, 612 (8th Cir. 2002)
(dismissing case as frivolous because “[n]either differences of opinion nor medical
malpractice state an actionable Constitutional violation”); Vonoczky v. Hedrick, 44 F.
App’x 41, 42 (8th Cir. 2002) (finding that record established treatment of, not deliberate
indifference to, plaintiff’s medical conditions); Jolly v. Knudsen, 205 F.3d 1094, 109697 (8th Cir. 2000) (finding efforts to treat condition did not constitute deliberate
indifference); Logan v. Clarke, 119 F.3d 647, 650 (8th Cir. 1997) (concluding that
doctors’ efforts to alleviate pain, while perhaps not as extensive as those a privatehealthcare provider might have taken, did not reflect deliberate indifference to plaintiff’s
medical needs); Swope v. Cameron, 73 F.3d 850, 852 (8th Cir. 1996) (holding that
inmate’s dissatisfaction with the psychological treatment he was receiving was insufficient
to establish an Eighth Amendment violation); Camberos v. Branstad, 73 F.3d 174, 177
(8th Cir. 1995) (concluding that thorough care did not support a finding of deliberate
indifference); Vaughan v. Lacey, 49 F.3d 1344, 1346 (8th Cir. 1995) (holding that
disagreement as to the proper course of treatment of inmate’s psychiatric condition was
not actionable under the Eighth Amendment); Sherrer v. Stephens, 50 F.3d 496, 497 (8th
Cir. 1994) (holding that inmate’s desire for a replacement joint instead of fusion surgery
was “merely a disagreement with the course of medical treatment and does not state a
constitutional claim”); Czajka v. Caspari, 995 F.2d 870, 871 (8th Cir. 1993) (finding
that prisoner’s disagreement with prison doctor about delaying surgery did not state a
valid Eighth Amendment claim); Fletcher v. Butts, 994 F.2d 548, 549 (8th Cir. 1993)
(holding that conservative treatment did not establish deliberate indifference); Lair v.
Ogelsby, 859 F.2d 605, 606 (8th Cir. 1988) (stating that mere disagreement about which
medication should have been prescribed does not constitute an Eighth Amendment
violation); Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir. 1985) (holding that
prisoner’s disagreement about treatment of pain in his lower back and arm did not
constitute an Eighth Amendment violation); Randall v. Wyrick, 642 F.2d 304, 308 (8th
Cir. 1981) (finding that mere disagreement over diagnosis and medication involving back
and joint pain did not constitute an Eighth Amendment violation); Cognato v. Ciccone,
558 F.2d 512, 513 (8th Cir. 1977) (concluding that prisoner’s disagreement over
medication did not raise a claim under the Eighth Amendment); Seward v. Hutto, 525
F.2d 1024, 1024-25 (8th Cir. 1975) (holding that prisoner’s disagreement over diagnosis
did not state an Eighth Amendment claim). Because plaintiff is dissatisfied with the result
of his surgery and acknowledges that he is receiving pain pills when his stomach hurts,
he fails to state a claim upon which relief can be granted.
For the reasons set forth herein, plaintiff’s complaint must be dismissed as
frivolous or for failing to state a claim upon which relief can be granted. Because I deem
it appropriate to dismiss the complaint pursuant to 28 U.S.C. 1915A(b)(1) and/or 28
U.S.C. § 1915(e)(2)(B), the dismissal of this action counts against plaintiff for purposes
of the three-dismissal rule set forth in 28 U.S.C. § 1915(g).
IT IS THEREFORE ORDERED:
(1) Plaintiff’s application to proceed in forma pauperis (Doc. No. 1) is granted.
(2) The clerk’s office is directed to file the complaint (docket no. 1-1) as a new
entry without the prepayment of the filing fee.
(3) Plaintiff is directed to submit an initial partial filing of $6.31 by no later than
August 11, 2017. If necessary, plaintiff may request in a written motion an
extension of time to pay the initial partial filing fee. Additionally, after plaintiff
pays the initial partial filing fee, the institution having custody of plaintiff is
directed to collect and remit monthly payments in the manner set forth in 28
U.S.C. § 1915(b)(2). Until the $350.00 filing fee is paid in full, plaintiff is
obligated to pay and the institution having custody of him is obligated to forward
20 percent of the preceding month’s income credited to his account each time the
amount in the account exceeds $10.00.
(4) The clerk’s office is directed to send a copy of this order and the notice of
collection of filing fee to the appropriate official at the place where plaintiff is an
(5) Plaintiff’s 42 U.S.C. § 1983 action is dismissed pursuant to 28 U.S.C.
1915A(b)(1) and/or 28 U.S.C. § 1915(e)(2)(B).
(6) The dismissal of this case counts against plaintiff for purposes of the threedismissal rule set forth in 28 U.S.C. § 1915(g).
(7) The clerk’s office is directed to enter judgment in favor of defendant.
IT IS SO ORDERED.
DATED this 13th day of July, 2017.
Leonard T. Strand, Chief Judge
Anamosa State Penitentiary, Anamosa, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Jeff Newman, #6934526, an inmate at your
facility, filed the following lawsuit in the United States District Court for the Northern
District of Iowa: Newman v. Hernia Mesh Company, Case No. C17-0076-LTS. The
inmate was granted in forma pauperis status pursuant to 28 U.S.C. § 1915(b), which
requires partial payments of the $350.00 filing fee. Based on the inmate’s account
information, the court has assessed an initial partial filing fee of $6.31, which the inmate
must pay now to the clerk of court. See 28 U.S.C. § 1915(b)(1).
After payment of the initial partial filing fee, the [inmate] shall
be required to make monthly payments of 20 percent of the
preceding month’s income credited to [his] account. The
agency having custody of the [inmate] shall forward payments
from [his] account to the clerk of the court each time the
amount in the account exceeds $10 until the filing fees are
28 U.S.C. § 1915(b)(2). Therefore, you must monitor the account and send payments to
the clerk of court according to the system provided in 28 U.S.C. § 1915(b)(2), that is,
after plaintiff pays the initial partial filing fee of $6.31, you should begin making monthly
payments of 20 percent of the preceding month’s income credited to the inmate’s account.
Please make the appropriate arrangements to have these fees deducted and sent to the
court as instructed.
/s/ des, Deputy Clerk
Robert L. Phelps
U.S. District Court Clerk
Northern District of Iowa
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