Burston v. Missouri Department of Corrections et al

Filing 6

OPINION MEMORANDUM...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 $28.67 within thirty (30) days of the date of t his 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 plaintiff shall submit an amended complaint no later than thirty (30) days from the date of this Memorandum and Order. IT IS FURTHER ORDERED that the Court shall mail to plaintiff five copies of the Co urt's form Prisoner Civil Rights Complaint.( Amended/Supplemental Pleadings due by 2/17/2012., Initial Partial Filing Fee due by 2/17/2012.) (5 prisoner civil rights forms forwarded to Mr. Burston) Signed by Honorable Henry E. Autrey on 1/18/2012. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RONALD DALE BURSTON, JR.,
Plaintiff,
v.
MISSOURI DEPT. OF CORR., et al.,
Defendants.

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No. 1:11CV221 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
513412), 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 plaintiff does not have sufficient funds to pay the entire
filing fee and will assess an initial partial filing fee of $28.67. See 28 U.S.C. §
1915(b)(1). Additionally, the Court will order plaintiff to submit an amended
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
$143.33, and an average monthly balance of $104.08. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $28.67, 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
fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 112 S.
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Ct. 1728, 1733 (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, 127 S. Ct. 1955, 1974 (2007).
The Complaint
Plaintiff, an inmate at Southeast Correctional Center, brings this action under
42 U.S.C. § 1983 against several current and former employees of the Missouri
Department of Corrections and Correctional Medical Services/Corizon. Plaintiff’s
allegations relate to several different occurrences at different facilities purportedly
done by several different defendants.
For example, plaintiff first claims that in November of 2006 while incarcerated
at Algoa Correctional Center, he was verbally harassed by a couple of inmates in the
shower who told him they were just “playing” with him. Plaintiff states that he
reported the shower “harassment” to correctional officer May, but that May failed to
do anything about it. Plaintiff states that after his shower he told the inmates who had
“harassed” him in the shower that they could smoke marijuana in his cell, and that
after smoking with the men he passed out and later woke up and suspected that he had
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been sexually assaulted. Plaintiff asserts that he reported the alleged sexual assault
to defendants Unknown Reese and John Doe Sergeant, but that these defendants
failed to do anything about the incident because they told him he had washed off any
evidence that would have remained by taking a shower. Several months later plaintiff
tested positive for HIV. Plaintiff asserts that the Missouri Department of Corrections
facilitated an unsafe environment which led to the sexual assault at Algoa because
there was no guard stationed on his floor, no locks on the cell doors and no
monitoring cameras near his cell.
Plaintiff also complains that he was sexually fondled by a doctor employed by
Correctional Medical Services, defendant James Cooper, during his incarceration in
March of 2010 at Southeast Correctional Center. Plaintiff claims that defendant
Cooper fondled his buttocks and penis during a medical exam. Plaintiff asserts that
he reported the alleged fondling and that defendant Cooper was eventually removed
from the institution, although plaintiff does not know if his removal was related to his
own complaint. Plaintiff states that when he reported defendant Cooper’s conduct he
was told by a nurse employed by Correctional Medical Services that defendant
Cooper had a history of inappropriate behavior.
Plaintiff additionally claims that in September of 2010, defendant correctional
officer Daniel Smith “placed his life in danger” by telling other inmates he was a
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“snitch” and that he had HIV, which caused other inmates to start harassing him and
threatening him. Plaintiff attempts to assert a violation of HIPAA against defendant
Smith, as well as an action for verbal harassment. Plaintiff also asserts that it is a
violation of the DOC policy to disclose an inmate’s health information.
Plaintiff asserts that from November of 2009 through July of 2010, defendant
Michael Hakala, a doctor employed by Correctional Medical Services, failed to
properly treat his HIV, causing him to suffer severe pain and chronic skin conditions.
Plaintiff claims that defendant Hakala acted with deliberate indifference to his serious
medical needs by failing to provide him with the proper treatment for his HIV.
Plaintiff states that in July of 2010, defendant Russell Graham, a doctor
employed by Correctional Medical Services, was deliberately indifferent to his
serious medical needs relating to a throat condition he suffered as a complication of
his HIV.
Lastly, plaintiff claims that defendant Pamela Lacey, a nurse employed by
Correctional Medical Services, provided him with the wrong medication on May 18,
2011. Plaintiff asserts that he takes over 20 pills per day for his condition and that
the medication mix-ups have occurred before and resulted in exacerbation of his
condition. Plaintiff claims that he has reported the mix-ups to supervisor Stephanie
Novak but that she merely laughed at him and “did nothing about the matter.”
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Plaintiff asserts that defendant Novak has refused him medical treatment for his throat
on more than one occasion despite an obvious need, and that she has acted
inappropriately toward him, “blowing kisses” and “patting her butt.” Plaintiff further
claims that defendant Novak allows his HIV medications to run out, despite her
knowledge that he must take his medications daily, and that she refuses to allow him
to be seen by an HIV specialist, although she tells him that she has discussed his case
with the specialist.
Discussion
Plaintiff’s complaint involves claims relating to at least two different
correctional facilities and eleven different defendants. Moreover, the claims appear
to span an almost six year period, which little or no relationship between the claims.
Furthermore, as the complaint now stands, many, if not all, of plaintiff allegations fail
to state a claim upon which relief could be granted.
For example, the complaint is silent as to whether defendants are being sued
in their official or individual capacities. Where a “complaint is silent about the
capacity in which [plaintiff] is suing defendant, [a district court must] interpret the
complaint as including only official-capacity claims.” Egerdahl v. Hibbing
Community College, 72 F.3d 615, 619 (8th Cir. 1995); Nix v. Norman, 879 F.2d 429,
431 (8th Cir. 1989). Naming a government official in his or her official capacity is
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the equivalent of naming the government entity that employs the official, in this case
the State of Missouri and/or Correctional Medical Services.1 Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 71 (1989). “[N]either a State nor its officials acting in
their official capacity are ‘persons’ under § 1983.” Id.
Likewise, plaintiff has not alleged a policy by CMS that caused his injuries. In
Sanders v. Sears Roebuck and Company, 984 F.2d 972 (8th Cir.1993), the court held
that a corporation acting under color of state law will be held liable under section
1983 only for its own unconstitutional policies or actions. “The proper test is whether
there is a policy, custom or action by those who represent official policy that inflicts
injury actionable under § 1983.” Id., 984 F.2d at 976. Thus, to state a viable claim
against CMS for an injury caused by an unconstitutional policy, plaintiff must allege
facts indicating the defendant doctor or nurse acted pursuant to an official CMS
policy and the official policy is responsible for plaintiff being denied constitutionally
adequate medical care. In this case, plaintiff has not done so.
Similarly, minor, isolated incidents of sexual touching coupled with occasional
offensive sexual remarks do not usually rise to the level of an Eighth Amendment
violation; thus, it is doubtful plaintiff can bring a claim against defendant Cooper or
defendant Novak for such behavior. See, e.g., Berryhill v. Schriro, 137 F.3d 1073,
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A suit against MDOC is, in effect, a suit against the State of Missouri.
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1075 (8th Cir.1998) (finding that conduct of prison employees in briefly touching
inmate’s buttocks, unaccompanied by any sexual comments or banter, was not sexual
assault required to support an Eighth Amendment claim); Rhoten v. Werholtz, 243
Fed. Appx. 364 (10th Cir.2007) (unpublished) (finding inmate’s allegations that
while correctional officers conducted a pat down search, officer “slammed him
against the wall, squeezed his nipples real hard, squeezed his buttocks, and pulled on
his testicles real hard causing him a great deal of discomfort and pain,” failed to state
an Eighth Amendment violation); Jackson v. Madery, 158 Fed. Appx. 656, 661 (6th
Cir.2005) (unpublished) (correction officer’s conduct in allegedly rubbing and
grabbing prisoner’s buttocks in degrading manner was “isolated, brief, and not
severe” and so failed to meet Eighth Amendment standards); Johnson v. Ward, No.
99-1596, 2000 WL 659354, at *1 (6th Cir. May 11, 2000) (unpublished) (male
prisoner’s claim that a male officer placed his hand on the prisoner’s buttock in a
sexual manner and made an offensive sexual remark did not meet the objective
component of the Eighth Amendment). And “verbal harassment” such as that alleged
done by defendant Smith does not rise to the level required to establish a
constitutional violation. See, e.g., McDowell v. Jones, 990 F.2d 433, 434 (8th Cir.
1993); King v. Olmsted, 117 F.3d 1065, 1067 (8th Cir. 1997) (verbal harassment
actionable only if it is so brutal and wantonly cruel that it shocks the conscience, or
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if the threat exerts coercive pressure on the plaintiff and the plaintiff suffers from a
deprivation of a constitutional right).
Likewise, the Court is not convinced that plaintiff’s claims of deliberate
indifference to his medical needs survive initial review with relation to his allegations
against defendants Hakala, Graham, Lacey and Novak. It is true that a prison
official’s deliberate indifference to a prisoner’s serious medical needs constitutes
cruel and unusual punishment in violation of the Eighth Amendment. Alberson v.
Norris, 458 F.3d 762, 765-66 (8th Cir. 2006). However, a prima facie case alleging
deliberate indifference requires the inmate-plaintiff to demonstrate that he suffered
from an objectively serious medical need and the “prison officials actually knew of
but deliberately disregarded” that need. Id. Medical malpractice alone, however, is
not actionable under the Eighth Amendment. Smith v. Clarke, 458 F.3d 720, 724 (8th
Cir. 2006). For a claim of deliberate indifference, “the prisoner must show more than
negligence, more even than gross negligence, and mere disagreement with treatment
decisions does not rise to the level of a constitutional violation.” Estate of Rosenberg
v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995). Deliberate indifference is akin to criminal
recklessness, which demands more than negligent misconduct. Olson v. Bloomberg,
339 F.3d 730, 736 (8th Cir. 2003). Moreover, in the face of medical records
indicating that treatment was provided and physician affidavits indicating that the
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care provided was adequate, an inmate cannot create a question of fact by merely
stating that he did not feel he received adequate treatment. Dulany v. Carnahan, 132
F.3d 1234, 1240 (8th Cir. 1997).
Additionally, although the Court is sympathetic to plaintiff’s allegations
surrounding his alleged sexual assault, it is not convinced that he has stated enough
factual allegations in his complaint to survive initial review of this failure to protect
claim under § 1915. In a suit seeking damages from prison officials for subjecting
him to cruel and unusual punishment by failing to protect him from assault by another
inmate, a plaintiff must show something more than mere inadvertence or negligence.
Andrews v. Siegel, 929 F.2d 1326, 1330 (8th Cir. 1991) (quotations omitted). He
must show the defendants were deliberately indifferent to his constitutional rights,
either because they actually intended to deprive him of some right, or because they
acted with reckless disregard of his right to be free from violent attacks by fellow
inmates. Id. (citations and quotations omitted). To establish “reckless disregard” by
prison officials, an inmate must show that he was faced with a “pervasive risk of
harm” and that the prison officials failed to respond reasonably to that risk. Id.
(citations omitted) Moreover, a “pervasive risk of harm” may not ordinarily be
shown by pointing to a single incident or isolated incidents, but it may be established
by much less than proof of a reign of violence and terror in the particular institution.
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Id. (quotations omitted). It is enough that violence and sexual assaults occur with
sufficient frequency that prisoners are put in reasonable fear for their safety and to
reasonably apprise prison officials of the existence of the problem and the need for
protective measures. Id. (citations and quotations omitted).
Lastly, there is no private right of action under HIPAA, either via § 1983 or
through an implied right of action. See, e.g., Dodd v. Jones, 623 F.3d 563, 569 (8th
Cir. 2010); Adams v. Eureka Fire Prot. Dist., 352 Fed. Appx. 137, 139 (8th Cir.
2009). And a federal court's inquiry is not whether a prison regulation not to disclose
medical information was violated but whether the Constitution was violated.
Griffin-Bey v. Bowersox, 978 F.2d 455, 457 (8th Cir. 1992) (per curiam).
Despite the aforementioned and because of the serious nature of some of the
allegations in the complaint, the Court will not dismiss the case at this time. Instead,
the Court will give plaintiff the opportunity to file an amended complaint. Plaintiff
shall have thirty (30) days from the date of this Order to file an amended complaint.
Plaintiff is warned that the filing of an amended complaint replaces the original
complaint, and claims that are not realleged are deemed abandoned. E.g., In re
Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th
Cir. 2005). If plaintiff fails to file an amended complaint within thirty (30) days, the
Court will dismiss this action without prejudice.
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Plaintiff must, however, follow the Court’s instructions relating to the filing of
his amended complaint. Plaintiff is required to submit his amended complaint on a
court-provided form, and it must comply with Rules 8 and 10 of the Federal Rules of
Civil Procedure. Plaintiff must clearly state the defendants which he is pursuing
allegations against, and he must articulate, for each of those defendants, the factual
circumstances surrounding their alleged wrongful conduct. Plaintiff’s failure to make
specific and actionable allegations against any of the defendants will result in their
dismissal from this case.
After the filing of plaintiff’s amended complaint, the Court will review the
amended complaint pursuant to 28 U.S.C. § 1915 for frivolousness, maliciousness
and/or failure to state a claim. A claim and/or defendant must survive § 1915 review
in order for plaintiff to proceed on those claims in this lawsuit.
Lastly, the Court wishes to remind plaintiff that he cannot normally seek to join
claims against several different defendants relating to events arising at several
different correctional facilities in the same lawsuit. Such pleading practices are not
allowed, especially in prisoner actions where there could be an incentive to avoid
paying separate filing fees. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)
(district court should question joinder of defendants and claims in prisoner cases).

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In other words, plaintiff should only include in his amended complaint claims
which arise out of the same transaction or occurrence, or simply put, claims that have
some relation to each other. See Fed.R.Civ.P. 18(a) and 20(a)(2). Application of this
rule will usually result in a complaint containing claims relating to just one
correctional center, and usually to just one event or time period. If plaintiff wishes
to pursue claims against numerous defendants at various different correctional
centers, and the claims do not arise from the same transaction or occurrence, he
should file his claims on separate complaint forms and seek to proceed in several new
civil actions. In anticipation of such an occurrence, the Court will order the Clerk to
provide plaintiff with several blank complaint forms.
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 $28.67 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.

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IT IS FURTHER ORDERED that plaintiff shall submit an amended
complaint no later than thirty (30) days from the date of this Memorandum and Order.
IT IS FURTHER ORDERED that the Court shall mail to plaintiff five copies
of the Court’s form Prisoner Civil Rights Complaint.
Dated this 18th day of January, 2012.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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