Burston v. Lacey et al

Filing 6

MEMORANDUM AND ORDER..DENYING: 4 MOTION to Appoint Counsel filed by Plaintiff Ronald Dale Burston, Jr., GRANTING 3 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Ronald Dale Burston, Jr. IT IS FURTHER ORD ERED 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 iss ue upon the complaint as to defendants Pamela Lacey and Stephanie Novak. Defendants shall be served in accordance with the waiver agreement maintained by this Court and Correctional Medical Services.IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. & #167; 1997e(g)(2), defendants Pamela Lacey and Stephanie Novak 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 sh all not issue process or cause process to issue upon the complaint as to plaintiffs official capacity claims against the defendants because as to these claims 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( Initial Partial Filing Fee due by 6/11/2012.). Signed by Honorable Stephen N. Limbaugh, Jr on 5/11/12. (MRS)

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

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No. 1:12CV32 LMB

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
513412), an inmate at Northeast Correctional Center, for leave to commence this
action without payment of the required filing fee [Doc. #3]. 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 $1.00. 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 filed a document stating that he has attempted to obtain a certified
copy of his prison account statement but that the officials have refused to provide him
with one. When a prisoner is unable to provide the Court with a certified copy of his
prison account statement, the Court should assess an amount “that is reasonable,
based on whatever information the court has about the prisoner’s finances.”
Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997). Based upon plaintiff’s
insistence that he currently is lacking in funds and is pursuing several cases in this
Court at the same time, the Court will assess an initial partial filing fee of $1.00.1
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The Court notes that in an earlier case before this Court, plaintiff filed a
certified copy of his prison account statement that showed an average monthly
deposit of $143.33 and an average monthly balance of $104.08. See Burston v.
Missouri Dept. of Corr., 1:11CV221 HEA (E.D. Mo.). In that case, the Court
assessed an initial partial filing fee of $28.67 which plaintiff has paid.
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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). 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
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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.
The Complaint
Plaintiff, an inmate at Northeast Correctional Center, brings this action under
42 U.S.C. § 1983 against two employees of Correctional Medical Services/Corizon
(hereinafter referred to as “CMS”). Named as defendants are Pamela Lacey (nurse)
and Stephanie Novak (nurse).
Plaintiff’s allegations against defendants relate to violations of his
constitutional rights which purportedly occurred during his incarceration at Southeast
Correctional Center (“SECC”). Plaintiff asserts that on May 18, 2011, defendant
Lacey deliberately gave him the wrong medication for his HIV and made him take the
medication even when he pointed out that it was not his medication. Plaintiff states
that defendant Lacey gave him the wrong medication in retaliation for his complaints
against her and other nurses assigned to SECC relating to their failure to give him
proper medical care. Plaintiff states that after receiving the wrong medication he
became very sick and nearly died. He states that he reported the retaliatory actions
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of defendant Lacey to her nurse supervisor, defendant Novak, but that defendant
Novak first ignored him and then “laughed” at his complaints. Plaintiff claims that
defendant Novak has refused to provide him medical treatment on more than one
occasion for a sore throat (as a result of his HIV), has allowed his HIV medication to
run out despite his obvious needs, and she has also refused to provide him with
medication and attempted to give him the wrong medication. Plaintiff claims that
defendant Novak has also refused to allow plaintiff to be seen by an HIV specialist
“in retaliation for [him] rejecting her sexual advances wherein she acted
inappropriately toward [him], ‘blowing kisses,’ ‘patting her butt,’ ‘etc.’”
Plaintiff brings this action against defendants Lacey and Novak in both their
official and individual capacities, and he seeks both monetary damages and injunctive
relief.
Discussion
Plaintiff’s claims against defendants Lacey and Novak in their individual
capacities for deliberate indifference to his serious medical needs and for retaliation
state a claim for relief under 28 U.S.C. § 1915.
However, plaintiff’s claims against the defendants in their official capacities
are subject to dismissal, as plaintiff has not made any allegations that a custom or
policy of CMS was responsible for the alleged violations of plaintiff’s constitutional
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rights. See, e.g., Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989);
Monell v. Dep’t of Social Services, 436 U.S. 658, 690-91 (1978).
Plaintiff’s motion for appointment of counsel will be denied at this time. There
is no constitutional or statutory right to appointed counsel in a civil case. Nelson v.
Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In determining
whether to appoint counsel, the Court considers several factors including (1) whether
the plaintiff has presented non-frivolous allegations supporting his prayer for relief;
(2) whether the plaintiff will substantially benefit from the appointment of counsel;
(3) whether there is a need to further investigate and present the facts related to the
plaintiff's allegations; and (4) whether the factual and legal issues presented by the
action are complex. See Battle v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990);
Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986); Nelson, 728 F.2d at
1005.
After considering these factors, the Court finds that the facts and legal issues
involved are not so complicated that the appointment of counsel is warranted at this
time.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #3] is GRANTED.
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IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $1.00 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 Pamela Lacey and Stephanie
Novak. Defendants shall be served in accordance with the waiver agreement
maintained by this Court and Correctional Medical Services.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants Pamela Lacey and Stephanie Novak 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 plaintiff’s official capacity claims against

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the defendants because as to these claims the complaint is legally frivolous or fails
to state a claim upon which relief can be granted, or both.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #4] is DENIED.
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 11th day of May, 2012.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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