Malady v. Corizon et al
MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff John Timothy Malady motion is GRANTED( Initial Partial Filing Fee due by 7/29/2013.)IT IS FURTHER ORDERED that the plaintiff sha ll pay an initial filing fee of $3.37 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 registra tion 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 causeprocess to issue upon the complaint. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants shall reply to plaintiffs claims withi n the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. Signed by District Judge Stephen N. Limbaugh, Jr on 6/28/13. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JOHN TIMOTHY MALADY,
CORIZON, et al.,
No. 1:13CV80 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of John Malady (registration
no. 43851), 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 $3.37. See 28 U.S.C. § 1915(b)(1).
Furthermore, after reviewing the complaint, the Court will order the Clerk to issue
process or cause process to be issued on 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
$16.83, and an average monthly balance of $0.03. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $3.37, 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 may 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 against a defendant who is
immune from such relief. An action is frivolous if “it lacks an arguable basis in either
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). 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,
127 S. Ct. 1955, 1974 (2007).
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the
complaint 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, 3233 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Plaintiff brings this action under 42 U.S.C. § 1983 and state law for alleged
deliberate indifference to his serious medical needs. Named as defendants are
Corizon, Dr. Unknown Brademen, Dr. Unknown Stamps, Dr. Michael Hakala,
Stephanie Kastings-Novak (nurse), and Jennifer Johnson (medical records clerk).
Plaintiff alleges that before he was incarcerated in the Missouri Department of
Corrections he suffered a fractured left hip as a result of an accident. Orthopedic
surgeons inserted several screws in his left femur head in repairing the fracture. As
a result of the fracture, plaintiff’s left leg is one-and-one-half inches shorter than his
Plaintiff asserts that he has chronic leg and back pain as a result of his injuries.
Plaintiff was provided with corrective boots for several years to account for his
shortened left leg. Plaintiff says he has generally been denied sufficient pain
medications to control his pain.
Plaintiff brings six claims for relief. In claim one, plaintiff alleges that Corizon
has a policy of denying adequate pain medications and that this policy has caused him
significant unnecessary pain. In claim two, plaintiff alleges that Corizon and
defendant Hakala have not allowed him to see an orthopedic specialist for over
sixteen years in retaliation for his having filed previous lawsuits. In claim three,
plaintiff alleges that defendants Hakala and Kastings-Novak confiscated his
orthopedic boots in retaliation for his having filed lawsuits. In claim four, plaintiff
alleges that defendants Brademen and Stamps deprived him of adequate pain
medications, which he had been prescribed, because of Corizon’s policies and
administration. In claim five, plaintiff alleges that he has been harmed by defendants
because they prescribed him nonsteroidal anti-inflammatory drugs, which raise his
blood pressure, instead of adequate pain medications. And in claim six, plaintiff
alleges that defendant Johnson defrauded him of his money when he tried to purchase
his medical records from her.
The Court has carefully reviewed each of plaintiff’s claims and finds that they
should not be dismissed under 28 U.S.C. § 1915(e). As a result, the Court will order
the Clerk to serve process on the complaint.
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $3.37 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.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants 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 this case is assigned to Track 5B: Prisoner
Dated this 28th day of June, 2013.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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