Foster v. Anderson et al
Filing
2
INITIAL REVIEW ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Azzel Mickey Lee Foster. The Clerk of Court shall file Plaintiff's Complaint forthwith without prepayment of a filing fee. Clerk shall deliver a copy of t his Order and the filed complaint to Fort Dodge Correctional Facility care of Plaintiff. Clerk of Court shall also deliver, by certified mail, copies of Order and Complaint to each of the named Defendants, and to the Iowa Attorney General. The Stat e of Iowa must be dismissed from this case. The Court appoints Hannah Vellinga to represent Mr. Foster in this case. Appointed counsel will file and serve an Amended Complaint within 45 days. Signed by Senior Judge Donald E OBrien on 10/31/14. (copy w/complaint mailed to plaintiff, Atty Hannah Vellinga; copy of Order and Complaint sent certified mail to defendants and IA Attorney General) (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
AZZEL MICKEY LEE FOSTER
Plaintiff,
No. 14-CV-3043-DEO
v.
INITIAL REVIEW ORDER
ARNOLD ANDERSON, BRAD KINTE,
AND THE STATE OF IOWA,
Defendants.
____________________
I.
INTRODUCTION
This matter is before the Court on Azzel Mickey Lee
Foster’s
(hereinafter
Mr.
Foster)
pro
se
Application
to
Proceed In Forma Pauperis and his 42 U.S.C. § 1983 Complaint
against Arnold Anderson, Brad Kinte, and the State of Iowa
filed July 22, 2014.
currently
an
inmate
Docket Nos. 1, 1-1.
in
at
the
Fort
Mr. Foster is
Dodge
Correctional
Facility.
In his Complaint, Mr. Foster alleges that he has received
ineffective medical care while at the Fort Dodge Correctional
Facility.
Defendants
Specifically,
gave
him
Mr.
incorrect
Foster
alleges
medicine
which
that
the
left
him
partially blind, that the Defendants are just trying to “drug
me
up,”
that
he
has
untreated
migraines,
and
that
the
Defendants are slow to respond to his medical needs.
II.
IN FORMA PAUPERIS
The filing fee for a 42 U.S.C. § 1983 action is $350.00.
28 U.S.C. § 1914(a).
In forma pauperis status allows a
plaintiff to proceed without incurring filing fees or other
court costs.
In order to qualify for in forma pauperis
status, a plaintiff must provide this Court an affidavit1 with
the following statements:
(1) statement of the nature of the
action, (2) statement that plaintiff is entitled to redress,
(3) statement of the assets plaintiff possesses, and (4)
statement that plaintiff is unable to pay filing fees and
court
costs
1915(a)(1).2
requirement:
or
give
security
Prisoners
must
therefor.
also
meet
28
an
U.S.C.
§
additional
they must submit a certified copy of their
1
An affidavit is a “voluntary declaration of facts
written down and sworn to by the declarant before an officer
authorized to administer oaths.” Black’s Law Dictionary (9th
ed. 2009), affidavit.
2
Entitled to redress means that the plaintiff is
entitled to relief or is entitled to a judgment in his or her
favor.
2
prisoner trust fund account statement for a 6-month period
prior to the filing of the complaint. 28 U.S.C. § 1915(a)(2).
Mr.
Foster’s
Motion
to
Proceed
in
Forma
Pauperis
substantially complies with the requirements laid out above.
Accordingly, the Court will allow Mr. Foster’s claim to
proceed with out the prepayment of filing fees.
Although the
court deems it appropriate to grant the plaintiff in forma
pauperis status, the plaintiff is required to pay the full
$350.00 filing fee by making payments on an installment basis.
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
appeal.”).
prisoner
brings
a
civil
action
or
files
an
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.
28 U.S.C. § 1915(e)(2).
Here, the plaintiff must pay an initial partial filing
fee in the amount of 20 percent of the greater of his average
monthly account balance or average monthly deposits for the
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six months preceding the filing of the complaint.
§ 1915(b)(1).
28 U.S.C.
Based on the documents that the plaintiff
submitted, the court finds that the initial partial filing fee
is $4.02. Id.
The plaintiff shall submit $4.02 by no later
than thirty days from the date of this Order.
Id.
If the
Court does not receive payment by this deadline, the instant
action shall be dismissed. See Fed.R.Civ.P. 41(b) (permitting
dismissal where a plaintiff either fails to prosecute or fails
to respond to an order of the court); Hutchins v. A.G. Edwards
&
Sons,
Inc.,
116
F.3d
1256,
1259–60
(8th
Cir.
1997)
(explaining court's power to dismiss an action); Edgington v.
Missouri Dept. of Corrections, 52 F.3d 777, 779–80 (8th Cir.
1995) (same), abrogated on other grounds by Doe v. Cassel, 403
F.3d 986, 989 (8th Cir. 2005).
If necessary, the 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,
the
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
4
prisoner's
institution
to
collect
the
payments and forward them to the court.
additional
monthly
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).
in
full
the
initial
Therefore, after the plaintiff pays
partial
filing
fee,
the
remaining
installments shall be collected by the institution having
custody of the plaintiff.
Id.
The clerk's office shall send
a copy of this order and the notice of collection of filing
fee
to
the
appropriate
official
at
the
place
where
the
plaintiff is an inmate.
Therefore, Plaintiff’s Pro Se Motion for Leave to Proceed
in Forma Pauperis is granted.
The Clerk of Court shall file
Plaintiff’s Complaint forthwith without prepayment of a filing
fee.
The Clerk of Court shall also deliver a copy of this
Order and the filed complaint to Fort Dodge Correctional
Facility care of the Plaintiff. The Clerk of Court shall also
5
deliver, by certified mail, copies of this Order and attached
waiver
of
service
of
summons,
along
with
copies
of
the
Complaint to each of the named Defendants, and to the Iowa
Attorney
General.
The
Clerk
of
Court
shall
access
any
applicable fees to the Plaintiff in accordance with 28 U.S.C.
§ 1915(b).
However, once any portion of a filing fee is waived, a
court must dismiss the case if a Plaintiff’s allegations of
poverty prove untrue or the action in question turns out to be
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.
III.
28 U.S.C. § 1915(e)(2).
42 U.S.C. § 1983 INITIAL REVIEW STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires “a short
and plain statement of the claim showing that the pleader is
entitled
to
relief.”
Pro
se
complaints,
no
matter
how
“inartfully pleaded are held to less stringent standards than
formal pleadings as drafted by a lawyer.” Hughes v. Rowe, 449
U.S. 5, 9 (1980) (internal citations omitted).
Although it is a long-standing maxim that a complaint’s
factual allegations are to be accepted as true at the early
6
stages of a proceeding, this does not require that a court
must entertain any complaint no matter how implausible.
The
facts pled “must [still] be enough to raise a right to relief
above the speculative level . . . .”
Twombly, 550 U.S. 544, 555 (2007).
Bell Atlantic Corp. v.
In other words, the claim
to relief must be “plausible on its face.”
Id. at 570.
A
claim is only plausible if a 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, 129 S. Ct. 1937, 1949 (2009).
Where the complaint
does “not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it
has not ‘show[n]’ - that the pleader is entitled to relief.”
Id. at 1950 (citing Fed. Rule Civ. Proc. 8(a)(2)).
In
addition, “the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions.”
Id. at 1949.
42 U.S.C. § 1983 provides:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the
District of Columbia, subjects, or causes
to be subjected, any citizen of the United
States
or
other
person
within
the
7
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 . . . .
IV.
ISSUE
In his Complaint, Mr. Foster alleges he has received
deficient medical treatment.
V.
ANALYSIS
A.
Deliberate Indifference
In his Complaint, Docket No. 1, Att. 1, Mr. Foster
alleges that the Defendants gave him incorrect medicine which
left him partially blind, that the Defendants are just trying
to "drug me up," that he has untreated migraines, and that the
Defendants are slow to respond to his medical needs.
As the Courts have repeatedly stated:
[t]he Eighth Amendment prohibits the
infliction of cruel and unusual punishment.
”[T]he treatment a prisoner receives in
prison and the conditions under which he is
confined are subject to scrutiny under the
Eighth Amendment.” Helling v. McKinney,
509 U.S. 25, 31 (1993). To prevail on an
Eighth Amendment claim for deprivation of
medical care, an inmate must show that the
prison
official
was
deliberately
indifferent to the inmate's serious medical
needs. Coleman v. Rahija, 114 F.3d 778,
8
784 (8th Cir. 1997).
This requires a
two-part showing that (1) the inmate
suffered from an objectively serious
medical need, and (2) the prison official
knew
of
the
need
yet
deliberately
disregarded it. Id.; see also Farmer v.
Brennan, 511 U.S. 825, 837 (1994); Estelle
v. Gamble, 429 U.S. 97, 105 (1976).
A
serious medical need is “one that has been
diagnosed by a physician as requiring
treatment, or one that is so obvious that
even a layperson would easily recognize the
necessity for a doctor's attention.”
Camberos v. Branstad, 73 F.3d 174, 176 (8th
Cir. 1995). A medical need that would be
obvious to a layperson makes verifying
medical evidence unnecessary. Hartsfield
v. Colburn, 371 F.3d 454, 457 (8th Cir.
2004).
Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011).
Mr. Foster’s pro se Complaint amounts to an allegation
that
the
Defendants
have
been
deliberately
indifferent.
Accepting Mr. Foster’s allegations as true, it is clear he has
alleged a violation that may be actionable under 42 U.S.C. §
1983.
His claim will be allowed to proceed past the initial
review stage, except as discussed below.
B.
State of Iowa
In his Complaint, Mr. Foster named the State of Iowa as
a Defendant.
42 U.S.C. § 1983 specifically provides for a
federal cause of action against a "person" who, under color of
9
state law, violates another's federal rights.
In Will v.
Michigan Dept. of State Police, the Supreme Court ruled “that
a State is not a person within the meaning of § 1983.”
U.S. 58, 63 (1989).
491
Therefore, Mr. Foster's § 1983 Complaint
cannot proceed against the State of Iowa because the State is
not a "person" under the law.
Accordingly, the State of Iowa
must be dismissed from this case.
VI.
APPOINTMENT OF COUNSEL
Mr. Foster did not file a Motion for Appointment of
Counsel in this case.
However, in his Complaint, he request
monetary damages so he can afford to pay for an attorney.
Docket No. 1, Att. 1, p. 4.
Under 28 U.S.C. §1915(e)(1)
"[t]he court may request an attorney to represent any person
unable to afford counsel."
granting
pauperis.
Mr.
Foster’s
As discussed above, the Court is
application
to
proceed
in
forma
It is clear that he does not have the funds to
afford counsel.
Accordingly, the Court will appoint counsel
to represent Mr. Foster in this case.
10
Appointed Counsel will have 45 days from the date of this
order to file and serve an Amended Complaint setting out Mr.
Foster’s legally viable claims.
VII.
CONCLUSION
Plaintiff’s pro se Motion for Leave to Proceed In Forma
Pauperis, Docket No. 1, is granted.
Plaintiff’s pro se
Complaint shall be filed by the Clerk and allowed to proceed
past the initial review stage.
However, the State of Iowa
must be dismissed as a Defendant.
Finally, the Court is
persuaded that counsel should be appointed to represent Mr.
Foster in this case.
The Court hereby appoints an attorney
Hannah Vellinga under Library Fund Administrative Order No.
14-AO-0007. After consulting with the Plaintiff regarding the
nature of the alleged claim, appointed counsel will file and
serve
an
Amended
Complaint
specifically
setting
out
the
Plaintiff’s legally viable claims within 45 days.
IT IS SO ORDERED this 31st day of October, 2014.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
11
NOTICE OF LAWSUIT
and REQUEST FOR
WAIVER OF SERVICE OF SUMMONS
TO THE NAMED DEFENDANT(S) IN THE FOLLOWING CAPTIONED ACTION:
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
AZZEL MICKEY LEE FOSTER,
Plaintiff,
No. 14-CV-3043-DEO
v.
ARNOLD ANDERSON, BRAD KINTE,
Defendants.
____________________
A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A
copy of the complaint and a copy of the corresponding order from this Court are attached. This complaint
has been filed in the United States District Court for the Northern District of Iowa.
Pursuant to Rule 4 of the Federal Rules of Civil Procedure, you have an obligation to cooperate
in saving unnecessary costs of service of summons and complaint. Please sign the enclosed document
where appropriate acknowledging receipt of the complaint and notice of this pending lawsuit and waiving
formal service of summons. After signing the enclosed document, please return it to the United States
.
Clerk’s Office in the envelope provided within thirty (30) days of this date: 10/31/14
I affirm that this notice and request for waiver of service of summons is being sent to you on behalf
, 2014.
of the plaintiff, this October 31
/s/ djs, Deputy Clerk
Signature (Clerk’s Office Official)
Northern District of Iowa
12
ACKNOWLEDGMENT OF RECEIPT OF
NOTICE OF LAWSUIT,
and WAIVER OF SERVICE OF SUMMONS
10/31/14
(**Return this document within thirty days after ______________________________, to the United States
Clerk’s Office in the envelope provided.)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
AZZEL MICKEY LEE FOSTER,
Plaintiff,
No. 14-CV-3043-DEO
v.
ARNOLD ANDERSON and BRAD KINTE,
Defendants.
____________________
I acknowledge receipt of the complaint and notice of the lawsuit in which I (or the entity on whose
behalf I am addressed) have been named a defendant. I have received and/or read the complaint
accompanying this document.
I agree to save the cost of service of a summons and an additional copy of the complaint by not
requiring that I (or the entity on whose behalf I am acting) be served with judicial process in the manner
provided by Rule 4 of the Federal Rules of Civil Procedure. I hereby waive service of summons.
I (or the entity on whose behalf I am acting) will retain all defenses or objections to the lawsuit or
to the jurisdiction or venue of the Court except for objections based on a defect in the service of summons.
I understand that a judgment may be entered against me (or the entity on whose behalf I am acting) if an
answer or motion under Rule 12 of the Federal Rules of Civil Procedure is not served within 60 days after
10/31/14
, (the date Notice, Waiver and corresponding documents were sent or from
the date of the filing of the Amended Complaint, whichever is later) .
Date
Signature
Printed name
As
(Title)
of
(Entity)
13
Address Form
Case Number: 14-CV-3043-DEO
To:
RE:
10/31/14
Date: _____________________
Clerk of Court
Service on Named Defendants
Below, please find the known (or likely) addresses for the following
persons/entities who have been named as defendants to this action:
Defendant:
ALL DEFENDANTS
Fort Dodge Correctional Facility
James McKinney, Warden
Brad Kinte
1550 L. Street
Fort Dodge, Iowa 50501
Iowa Medical and Classification Center (IMCC)
Daniel Craig, Warden
Dr. Arnold Anderson
2700 Coral Ridge Avenue
Coralville, Iowa 52241
Iowa Attorney General
Thomas J. Miller
Hoover State Office Building
1305 E. Walnut Street, 2nd Floor
Des Moines, Iowa 50319
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TO: WARDEN/ADMINISTRATOR
FORT DODGE CORRECTIONAL FACILITY, FORT DODGE, IOWA
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Azzel Mickey Lee Foster,
#6674538, an inmate your facility, filed the following lawsuit
in the United States District Court for the Northern District
of Iowa:
Azzel Mickey Lee Foster v. Dr. Arnold Anderson and
Brad Kinte, 14-CV-3043-DEO.
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.
inmate’s
account
information,
the
court
has
Based on the
assessed
an
initial partial filing fee of $4.02, which the inmate must pay
now to the clerk of Court.
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 paid.
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, you
15
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/ djs, Deputy Clerk
_________________________________
Robert L. Phelps
U.S. District Court Clerk
Northern District of Iowa
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