Roberts v. Lombardi et al

Filing 24

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Clerk shall not issue process or cause process to issue on the second amended complaint and supplements, because the allegations are legally frivolous and fail to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Stephen N. Limbaugh, Jr on 11/8/12. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
KYLE A. ROBERTS,
Plaintiff,
v.
GEORGE A. LOMBARDI, et al.,
Defendants.

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No. 1:12-CV-134-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon review of plaintiff's second amended
complaint [Doc. #16] and supplements [Docs. #19, #21, and #23]. For the reasons
set forth below, the Court will dismiss this action pursuant to 28 U.S.C. §
1915(e)(2)(B).
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). An action fails to state a claim
upon which relief can be granted 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).
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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Moreover, in reviewing a pro se complaint under § 1915(e)(2)(B), the Court
must give the pleading the benefit of a liberal construction. Haines v. Kerner, 404
U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of
the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504
U.S. 25, 32 (1992).
The Second Amended Complaint and Supplements
Plaintiff, an inmate at the South Central Correctional Center, brings this 42
U.S.C. § 1983 action against defendants George A. Lombardi, Corizon, Inc., Dr.
Ricky Jones, Dr. Robert Graham, Dr. Gregory Pronoud, Stephanie Novak, Dr.
Michael Hakala, and Jeffrey Norman. Plaintiff's allegations arise out of the medical
treatment he received, or failed to receive, at the Southeast Correctional Center, after
another inmate, Fernando Fremandez, assaulted him and broke his jaw. In addition,
plaintiff claims that defendants failed to follow Missouri Department of Corrections
policy and procedure relative to oral and dental care. For relief, plaintiff states, "To
fix jaw and make defendants pay." Plaintiff is suing the individual defendants in their
individual and official capacities.
A. Official Capacity Claims against Lombardi, Jones, Graham, Pronoud,
Novak, Hakala, and Norman
Naming a government official in his or her official capacity is the equivalent
of naming the government entity that employs the official, in this case the State of

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Missouri. See 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. As such, the complaint is legally frivolous and fails to state a claim
upon which relief can be granted as to defendants George A. Lombardi, Dr. Ricky
Jones, Dr. Robert Graham, Dr. Gregory Pronoud, Stephanie Novak, Dr. Michael
Hakala, and Jeffrey Norman in their official capacities.
B.

Individual Capacity Claims against Lombardi, Jones, Graham,
Pronoud, Novak, Hakala, and Norman
1. Claims against George Lombardi

Liberally construing the pleadings, plaintiff is suing George Lombardi in his
supervisory capacity. Plaintiff alleges that Sergeant Werebougher, who is not a
defendant in this case, allowed the inmate who broke plaintiff's jaw to enter plaintiff's
cell "without a prior agreement,"1 and that therefore, defendant Lombardi is
responsible for plaintiff's physical injuries. In addition, plaintiff states that Lombardi
"[f]ailed to provide care of his office thus knowing [plaintiff] needed treatment and
failed to act," and "[f]ailed to train Dwayne Kempker by allowing interference with
medical complaint which interfered [with plaintiff] getting adequate treatment of [his]
jaw." Plaintiff further states that Lombardi "[m]akes policies and . . . [is] overseer of

Plaintiff states, "They had been putting me in cells with a lot of murders
[sic] . . . Fernando Fremandez was allowed to enter my cell without no prior
agreement, a common thing with Missouri D.O.C."
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medical policies such as the oral surgery policy" and is "responsible [for] paying and
contracting [with] Corizon, Inc.," and that Corizon "failed [his] 8th Amendment
right."
"Liability under section 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 defendant was
personally involved in or directly responsible for incidents that injured plaintiff).
Moreover, the theory of respondeat superior is inapplicable in § 1983 suits. Boyd v.
Knox, 47 F.3d 966, 968 (8th Cir. 1995); see also Keeper v. King, 130 F.3d 1309, 1314
(8th Cir. 1997)(noting that general responsibility for supervising operations of prison
is insufficient to establish personal involvement required to support liability under §
1983); Woods v. Goord, 1998 WL 740782, at *6 (S.D.N.Y. Oct.23, 1998) (receiving
letters or complaints does not render prison officials personally liable under § 1983).
Having carefully reviewed the complaint and supplements, the Court finds no
facts indicating that defendant Lombardi was directly involved in or personally
responsible for the violation of plaintiff's constitutional rights. In addition, plaintiff's
unsupported allegation that Lombardi failed to train Dwayne Kemper is conclusory,
at most suggesting perhaps some sort of negligence, as opposed to deliberate

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indifference. See Gilles v. Davis, 427 F.3d 197, 207 n.7 (3d Cir. 2005)(noting
deliberate indifference requirement for failure-to-train claim).
Because plaintiff has failed to assert any non-conclusory claims against
Lombardi, and he does not allege that defendant’s failure to train amounted to
deliberate indifference, this action will be dismissed as legally frivolous and for
failure to state a claim as to defendant George Lombardi. See Iqbal, 129 S. Ct. at
1950-51 (legal conclusions and threadbare recitals of the elements of a cause of
action that are supported by mere conclusory statements are not entitled to the
assumption of truth).
2. Claims against Dr. Ricky Jones
With regard to Dr. Ricky Jones, plaintiff alleges,
Denial of treatment. He had authority of law to provide treatment and
didn't. He felt [the] place where bone was fractured and inappropriately
healed. I have physical injury and should've been given emergency
relief by oral surgery policy. . . He failed in statute and constitution and
allowed Mrs. Novak to deny what he had already offered. He knew it
was acute and would not change without intervention.
Although plaintiff states he "should've been given emergency relief by oral surgery
policy," it is unclear exactly what Dr. Jones allegedly should have done for plaintiff,
or what he failed to do. Plaintiff's allegations indicate that he found Dr. Jones'
clinical examination to be inadequate, and he disagreed with the recommended course
of treatment; however, as stated, the allegations do not rise to the level of a § 1983

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claim.

Moreover, "claims of inadequate medical treatment which reflect a mere

disagreement with [state] authorities over proper medical treatment do not state a
claim of constitutional magnitude." Massey v. Hutto, 545 F.2d 45, 46 (8th Cir. 1976).
For these reasons, the Court will dismiss this action as to defendant Dr. Ricky Jones.
3. Claims against Dr. Robert Graham
Plaintiff is suing Dr. Graham for "alleged misdiagnosis." Plaintiff states, "I
didn't see [a] specialist for almost 2 weeks after I woke up with my jaw bleeding and
immediately sought attention.

I should be given health care 24/7 . . . His

misdiagnosis caused me not to get immediate help."
To state a claim for medical mistreatment, a plaintiff must plead facts sufficient
to indicate a deliberate indifference to serious medical needs. Estelle, 429 U.S. at
106. Mere negligence in diagnosing or treating a medical condition does not rise to
the level of a constitutional violation, Estelle v. Gamble, 429 U.S. 97, 106 (1976), nor
does a mere disagreement over treatment methods. Smith v. Marcantonio, 910 F.2d
500, 502 (8th Cir. 1990). Plaintiff’s allegations relative to Dr. Graham's misdiagnosis
sound in negligence, and therefore, do not rise to the level of deliberate indifference
so as to state an Eighth Amendment § 1983 claim. As such, this action will be
dismissed as to Dr. Graham, pursuant to § 1915(e)(2)(B).

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4. Claims against Dr. Gregory Pronoud
Plaintiff alleges that Dr. Pronoud "restored [his] jaw at first and was [a] decent
doctor all the way up to [the] incident" when plaintiff's jaw "popped at night . . .
causing broken bone in which they purposefully left [sic]. He has got to provide me
treatment and is bound by our constitution. I was deprived under his care." Plaintiff
further alleges, "Due to him being [an] independent contractor does not bar him[;] he
was to provide me treatment or refer me to another specialist [who] could[;] instead
he went to negotiate costs with central office."
To state a claim for unconstitutional medical mistreatment, a plaintiff must
plead facts sufficient to indicate deliberate indifference to serious medical needs.
Estelle, 429 U.S. at 106; Camberos v. Branstad, 73 F.3d 174, 175 (8th Cir. 1995).
To show deliberate indifference, a plaintiff must allege that he suffered objectively
serious medical needs and that the defendants actually knew of, but disregarded, those
needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). Medical
malpractice alone is not actionable under the Eighth Amendment. Smith v. Clarke,
458 F.3d 720, 724 (8th Cir. 2006). To state a claim for 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).
Plaintiff’s conclusory allegations relative to being "deprived" while under the
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care of Dr. Pronoud, are not entitled to the assumption of truth, and they do not rise
to the level of deliberate indifference. See Iqbal, 129 S.Ct. at 1950-51. Plaintiff has
failed to allege that Dr. Pronoud knew of, but disregarded, plaintiff's objectively
serious medical needs after plaintiff's jaw "popped," and therefore, the allegations fail
to state an Eighth Amendment § 1983 claim against Dr. Pronoud. Accordingly, this
action will be dismissed as to Dr. Pronoud pursuant to § 1915(e)(2)(B).
5. Claims against Stephanie Novak
Plaintiff summarily alleges that he "personally suffered" while under the care
of defendant Stephanie Novak. Plaintiff claims that, as the Director of Nursing,
Novak failed "to ensure inmates' state and federal [rights]." In addition, plaintiff
claims that Novak failed in "her personal duties as state actor."
The Court will dismiss this action as to defendant Stephanie Novak, because
plaintiff has failed to allege a violation of his constitutional rights, and his conclusory
claims are legally frivolous. See Twombly, 550 U.S. at 555 (plaintiff's obligation to
provide grounds of entitlement to relief requires more than labels and conclusions).
6. Claims against Dr. Michael Hakala
Plaintiff alleges that Dr. Hakala is Dr. Graham's "advisor," as well as the
"Medical Director." Plaintiff states,
Failed to train. Denial of treatment. Unprofessional . . . Did cut callous [sic]
off left side. And could've guided Graham but failed his duties . . . I had bone
marrow coming from under my tooth. Failed to act.
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Plaintiff's conclusory allegations relative to Dr. Hakala's unprofessional
conduct and failure to train Dr. Graham lack any factual basis and simply do not state
a claim or cause of action under § 1983. The Court, therefore, will dismiss this action
as to Dr. Hakala.
7. Claims against Jeffrey Norman
As to defendant Jeffrey Norman, plaintiff alleges, "Failure to protect, failure
to train, denied treatment. Werebougher, Jesse May, and Swift put my well-being at
stake at a weak moment." In addition, plaintiff alleges,
Failed to get [an] agreement saying it was alright to cell with and have
gotten write-ups for refusing cellies and put another p.c. that ultimately
put my life and safety at excessive risk . . . Should've never been brutally
attacked.
Should've trained Jesse May, Werebougher, Swift
appropriately on procedure and necessary force and getting agreement
and would've not been restrained with excessive risk of being attacked.
Plaintiff further states, "4. Broken Jaw - didn't receive treatment. 5. Failure to
protect received broken jaw. 6. Denied treatment - was aware and failed to act with
authority of law."
The complaint is legally frivolous as to defendant Jeffrey Norman, because
plaintiff does not set forth any facts indicating that Norman knew that inmate
Fernando Fremandez was a threat to plaintiff or that Norman was otherwise directly
involved in or personally responsible for the violation of plaintiff's constitutional
rights. See Madewell, 909 F.2d at 1208 (liability under § 1983 requires causal link
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to, and direct responsibility for, alleged deprivation of rights); see also Martin, 780
F.2d at 1338 (claim not cognizable under § 1983 where plaintiff fails to allege
defendant was personally involved in or directly responsible for incidents that injured
plaintiff).
To the extent that plaintiff is attempting to attach liability because of Norman's
supervisory position, his claims must fail. See Boyd, 47 F.3d at 968 (respondeat
superior theory inapplicable in § 1983 suits). Plaintiff does not allege that Norman
personally participated in, or had direct responsibility for, the alleged violations of
plaintiff's constitutional rights. See McDowell v. Jones, 990 F.2d 433, 435 (8th Cir.
1993)(supervisory liability under § 1983 requires proof that the supervisor personally
participated in or had direct responsibility for the alleged violations). In addition,
plaintiff does not state a claim for relief based on an alleged failure to train, because
he does not allege or present any facts indicating that Jeffrey Norman acted with
deliberate indifference. Rather, plaintiff summarily alleges that he was "denied
treatment," that there was a "failure to protect," and that Norman "should've trained"
others; however, a “plaintiff’s obligation to provide the grounds of his entitle[ment]
to relief requires more than labels and conclusions.” Twombly, 550 U.S. at 555. For
these reasons, the Court will dismiss this action as to defendant Jeffrey Norman,
pursuant to § 1915(e)(2)(B).

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C. Claims against Corizon, Inc.
The complaint is also legally frivolous as to defendant Corizon, Inc., because
plaintiff does not claim that any of the alleged constitutional violations are the result
of an official policy or action. Plaintiff merely alleges, "You let your staff run amok
. . . You are in violation of statute and law by the people you let represent you . . .
People suffer under poorly trained, deliberate[ly] calloused staff . . . You can't ignore
people's serious medical needs." "A corporation acting under color of state law will
be held liable only for its own unconstitutional policies." See Sanders v. Sears,
Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir. 1993). Because plaintiff does not
identify any alleged Corizon official policies or customs, the second amended
complaint and supplements are legally frivolous as to this defendant.
D. Failure-to-Follow-Policy Claims
Last, the Court will dismiss plaintiff's claims that the individual defendants
failed to follow Missouri Department of Corrections policy and procedure relative to
oral and dental care. Not only are plaintiff's claims conclusory, but allegations of
having violated state law or prison policy do not, in themselves, state a constitutional
claim under § 1983. Bagley v. Rogerson, 5 F.3d 325 (8th Cir. 1993).
Accordingly,
IT IS HEREBY ORDERED that the Clerk shall not issue process or cause
process to issue on the second amended complaint and supplements, because the
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allegations are legally frivolous and fail to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915(e)(2)(B).
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 8th day of November, 2012.

_________________________________
UNITED STATES DISTRICT JUDGE

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