Grace v. Hakala et al

Filing 4

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff William Grace motion is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing feeof $3.83 within thirty (30) days of the date of this Order>( Initial Partial Filing Fee due by 6/20/2011.)IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismi ssed without prejudice. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to defendants Hakala, Matthews, Lizenbee and Sterling, who all appear to be employed by Correctional Medical Services. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants Hakala, Matthews, Lizenbee and Sterling shall reply to plaintiffs claims within the time provided by the applicable provisions of Rule 12(a) of the FederalRules of Civil P rocedure. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to defendants Norman, Roger, Clark, Mitchell,Gibson and Derrickson because, as to these defendants, the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. Signed by Honorable Stephen N. Limbaugh, Jr on 5/19/11. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
WILLIAM GRACE,
Plaintiff,
v.
MICHAEL HAKALA, et al.,
Defendants.

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No. 1:11CV81 LMB

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
336358), an inmate at Southeast Correctional Center, for leave to commence this
action without payment of the required filing fee [Doc. #2]. For the reasons stated
below, the Court finds that the plaintiff does not have sufficient funds to pay the
entire filing fee and will assess an initial partial filing fee of $3.83. See 28 U.S.C. §
1915(b)(1). Furthermore, after reviewing the complaint, the Court will partially
dismiss the complaint and will order the Clerk to issue process or cause process to be
issued on the non-frivolous portions of the complaint.
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma
pauperis is required to pay the full amount of the filing fee. If the prisoner has
insufficient funds in his or her prison account to pay the entire fee, the Court must

assess and, when funds exist, collect an initial partial filing fee of 20 percent of the
greater of (1) the average monthly deposits in the prisoner’s account, or (2) the
average monthly balance in the prisoner’s account for the prior six-month period.
After payment of the initial partial filing fee, the prisoner is required to 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 agency having custody of the prisoner will
forward these monthly payments to the Clerk of Court each time the amount in the
prisoner’s account exceeds $10, until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account
statement for the six-month period immediately preceding the submission of his
complaint. A review of plaintiff’s account indicates an average monthly deposit of
$19.17, and an average monthly balance of $2.98. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $3.83, which is 20 percent of plaintiff’s average monthly deposit.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint
filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is immune
from such relief. An action is frivolous if it “lacks an arguable basis in either law or
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fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose
of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify
the allegations in the complaint that are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009).

These include “legal

conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are]
supported by mere conclusory statements.” Id. at 1949. Second, the Court must
determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a “context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 1950. The plaintiff is required to
plead facts that show more than the “mere possibility of misconduct.” Id. The Court
must review the factual allegations in the complaint “to determine if they plausibly
suggest an entitlement to relief.”

Id. at 1951.

When faced with alternative

explanations for the alleged misconduct, the Court may exercise its judgment in
determining whether plaintiff’s conclusion is the most plausible or whether it is more
likely that no misconduct occurred. Id. at 1950, 51-52.
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The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of
his civil rights. Named as defendants are: Michael Hakala (doctor, CMS); John
Matthews (HIV specialist, CMS); Becky Lizenbee (nurse, CMS); Jeffery Norman
(Warden); Terry Roger (Asst. Warden); Omer Clark (Deputy Warden); Kimberly
Sterling (nurse, CMS); Terry Mitchell; Amanda Gibson and Lacy Derrickson.
Plaintiff asserts that he is HIV positive, a recognized disability under the ADA,
and that defendants Hakala, Matthews and Lizenbee have noticed a decline in his
blood work but have refused his request to provide him with an adjustment to his
medication. Plaintiff asserts that on one occasion, defendant Sterling failed and
refused to give him his medication for HIV. Plaintiff also appears to be asserting that
the aforementioned defendants have retaliated against him unlawfully under the ADA
as a result of his disease.
Plaintiff claims that defendants Norman, Roger, and Clark have not intervened
with the medical decisions made by these defendants, despite his complaints.
Plaintiff has failed to make any specific allegations against defendants Mitchell,
Gibson or Derrickson.
Discussion

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Plaintiff’s allegations against defendants Hakala, Matthews, Lizenbee and
Sterling for deliberate indifference to his serious medical needs and for
retaliation/discrimination under the ADA survive initial review at this time. As such,
the Court will order the Clerk to issue process or cause process to be issued on these
defendants.
Plaintiff’s claims against defendants Norman, Roger and Clark sound in
respondeat superior, however, and do not state a claim for relief. Boyd v. Knox, 47
F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in § 1983
suits). Similarly, plaintiff’s failure to make specific allegations against defendants
Mitchell, Gibson or Derrickson is fatal to any claims he might have against them. See
Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable under
§ 1983 where plaintiff fails to allege defendant was personally involved in or directly
responsible for incidents that injured plaintiff).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $3.83 within thirty (30) days of the date of this Order. Plaintiff is instructed to
make his remittance payable to “Clerk, United States District Court,” and to include
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upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4)
that the remittance is for an original proceeding.
IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial
filing fee within thirty (30) days of the date of this Order, then this case will be
dismissed without prejudice.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to issue upon the complaint as to defendants Hakala, Matthews, Lizenbee and
Sterling, who all appear to be employed by Correctional Medical Services.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants Hakala, Matthews, Lizenbee and Sterling shall reply to plaintiff’s claims
within the time provided by the applicable provisions of Rule 12(a) of the Federal
Rules of Civil Procedure.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint as to defendants Norman, Roger, Clark, Mitchell,
Gibson and Derrickson because, as to these defendants, the complaint is legally
frivolous or fails to state a claim upon which relief can be granted, or both.
IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner
Standard.

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An appropriate Order of Partial Dismissal shall accompany this Memorandum
and Order.
Dated this 19th day of May, 2011.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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