Smith v. Hakala et al

Filing 5

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Jermanine M. Smith motion is GRANTED( Initial Partial Filing Fee due by 2/28/2013.)IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. Signed by District Judge Stephen N. Limbaugh, Jr on 1/28/13. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JERMANINE M. SMITH,
Plaintiff,
v.
MICHAEL C. HAKALA, et al.,
Defendants.

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No. 1:12CV201 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
190560), an inmate at Southeast Correctional Center, for leave to commence this
action without payment of the required filing fee. 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 $10.53. See 28 U.S.C. § 1915(b)(1).
Furthermore, based upon a review of the complaint, the Court finds that the complaint
should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
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
$52.67, and an average monthly balance of $52.30. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $10.53, 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). An action is malicious if it is
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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.
The Complaint
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Plaintiff, an inmate at Southeast Correctional Center brings this action pursuant
to 42 U.S.C. § 1983 alleging violations of his civil rights. Named as defendants are
employees of Corizon, Inc.: Michael Hakala (doctor), Robin Fincher (nurse) and
Stephanie Novak (nurse).
Plaintiff asserts that he has not been consistently receiving the proper “renal
diet” for his medical issues since he was transferred to SECC in July of 2012. He
alleges that he has seen defendants about certain chronic medical issues and
complained that his diet has been inconsistently adhered to by unnamed staff, but he
asserts that nothing has been done to change the inconsistently applied diet. Plaintiff
states in a conclusory fashion that he believes that defendants are being unresponsive
to his chronic illnesses, including his diabetes, “kidney problems” and high blood
pressure.
Plaintiff seeks monetary damages and injunctive relief for the alleged
violations of his civil rights.
Discussion
“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 defendant was personally
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involved in or directly responsible for incidents that injured plaintiff); Boyd v. Knox,
47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in § 1983
suits). Moreover, in a suit for deliberate indifference to one’s serious medical needs,
a plaintiff must allege, in a succinct manner, that he suffered objectively serious
medical needs and that each specific defendant actually knew of but deliberately
disregarded those needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997);
see also, Estelle v. Gamble, 429 U.S. 97, 106 (1976); Camberos v. Branstad, 73 F.3d
174, 175 (8th Cir. 1995). Allegations of mere negligence in giving or failing to
supply medical treatment will not suffice. Estelle, 429 U.S. at 106.
In the instant action, plaintiff has not set forth any facts indicating that any of
the named defendants were directly involved in or personally responsible for the
alleged violations of his constitutional rights. For example, plaintiff has not alleged
that defendants, who are medical providers at SECC, were responsible for failing to
provide him with a consistent “renal diet.” Rather, he merely complains that some
unnamed individual has failed to provide him with the diet that defendants have
prescribed. Additionally, although plaintiff has stated generally that he suffers from
chronic medical conditions, he has not stated in his complaint exactly what specific
conditions he has complained of to defendants and what treatment he has sought and

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how or when defendants allegedly disregarded his needs. As a result, the complaint
fails to state a claim upon which relief can be granted.
Additionally, plaintiff’s complaint fails to state a claim for yet another reason.
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 an official in his or her official capacity is the equivalent of naming the entity
that employs the official. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989). To state a claim against an official in his or her official capacity, plaintiff
must allege that a policy or custom of his or her employer is responsible for the
alleged constitutional violation. Monell v. Dep’t of Social Services, 436 U.S. 658,
690-91 (1978). The instant complaint does not contain any allegations that a policy
or custom of Corizon, Inc. was responsible for the alleged violations of plaintiff’s
constitutional rights. As a result, the complaint fails to state a claim upon which
relief can be granted.
Accordingly,

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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 $10.53 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 the Clerk shall not issue process or cause
process to issue upon the complaint because the complaint is legally frivolous or fails
to state a claim upon which relief can be granted, or both.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 28th day of January, 2013.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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