Lilly v. Norman et al
Filing
4
MEMORANDUM AND ORDER...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 $18.75 within thirty (30) days of the date of this Order.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 pr ocess or cause process to issue upon the complaint as to defendants Cato, Moore, Flood, Judy, and Reed. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants Cato, Moore, Flood, Judy, and Reed 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, N ovak, Hakala, Conley, or Roberts 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: PrisonerStandard. An appropriate Order of Partial Dismissal shall accompany this Memorandum and Order. ( Initial Partial Filing Fee due by 7/1/2011.). Signed by Honorable Catherine D. Perry on 6/1/2011. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JARROD ALEXANDER LILLY,
Plaintiff,
v.
JEFF NORMAN, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
No. 1:11CV88 LMB
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Jarrod Lilly (registration no.
1103626), an inmate at Southeast Correctional Center (“SECC”), for leave to
commence this action without payment of the required filing fee. 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 $18.75. 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
$93.75, and an average monthly balance of $7.06. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $18.75, 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
-2-
fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 504 U.S.
25, 31 (1992). 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). A complaint fails to state a claim if it does not plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983. Named as defendants are
Jeff Norman (Warden, SECC), Stephanie Novak (Administrator, Correctional
Medical Services (“CMS”)), Michael Hakala (Physician, CMS), E. Conley
(Physician, CMS), Heather Cato (Nurse, CMS), Lisa Roberts (same), Warren Moore
(same), Jarrod Flood (Physician, CMS), Debbie Judy (Nurse, CMS), and Charles
Reed (Sergeant, SECC).
Plaintiff alleges that on May 6, 2010, he had a tooth extracted, which had been
abscessed. Overnight, says plaintiff, he developed severe stomach pain and vomiting.
Plaintiff says that on May 7, 2010, he went to the medical unit and told defendant
Judy that he was experiencing severe abdominal pain and was vomiting black fluid.
Plaintiff claims that Judy refused allow him to see a physician until he submitted a
-3-
medical request form. Plaintiff says he complied and returned to his housing unit,
where his symptoms worsened.
Plaintiff claims that on May 8, 2010, his abdominal pain was still worse, and
he was continuing to vomit black fluid. Plaintiff says that he fell unconscious at one
point and two other inmates helped him to the medical unit where he self-declared an
emergency. Plaintiff alleges that he was seen by defendant Cato, who told him there
was nothing wrong with him and refused to allow him to see a physician. When
plaintiff persistently requested to see a physician, he claims, Cato threatened to have
him assigned to administrative segregation.
Over the next couple of days, alleges plaintiff, he was denied access to medical
care by defendants Reed and Moore. Plaintiff claims that on May 11, 2010, he saw
defendant Flood, who only ordered that plaintiff’s diet be changed.
Plaintiff alleges that on May 12, 2010, he lost consciousness while attempting
to get to the chow hall. Plaintiff claims that he regained consciousness in an outside
hospital after undergoing emergency surgery for a perforated duodenal ulcer.
Plaintiff does not allege that defendants Norman, Novak, Hakala, Conley, or
Roberts were directly involved in the above incidents.
-4-
Discussion
The complaint survives initial review as to defendants Cato, Moore, Flood,
Judy, and Reed. As a result, the Court will order these defendants to respond to the
complaint.
“Liability under § 1983 requires a causal link to, and direct responsibility for,
the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th
Cir. 1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not
cognizable under § 1983 where plaintiff fails to allege that defendant was personally
involved in or directly responsible for the incidents that injured plaintiff); Boyd v.
Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in
§ 1983 suits). In the instant action, plaintiff has not set forth any facts indicating that
defendants Norman, Novak, Hakala, Conley, or Roberts were directly involved in or
personally responsible for the alleged violations of his constitutional rights. As a
result, the complaint fails to state a claim upon which relief can be granted as to these
defendants.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
-5-
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $18.75 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
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 Cato, Moore, Flood, Judy, and
Reed.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants Cato, Moore, Flood, Judy, and Reed 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, Novak, Hakala,
Conley, or Roberts because, as to these defendants, the complaint is legally frivolous
or fails to state a claim upon which relief can be granted, or both.
-6-
IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner
Standard.
An appropriate Order of Partial Dismissal shall accompany this Memorandum
and Order.
Dated this 1st day of June, 2011.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?