Hawkins v. Southeast Correctional Center

Filing 12

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for extension of time to pay his initial partial filing fee [Doc. #10] is GRANTED. Plaintiff shall pay an initial filing fee of $1.98 within thirty (30) days of the date of this Memorandum and Order. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the second amended complaint because it is legally frivolous or fails to state a claim upon which relief can be granted, or both. An appropriate Order of Dismissal shall accompany this Memorandum and Order. ( Initial Partial Filing Fee due by 7/16/2014.). Signed by District Judge Stephen N. Limbaugh, Jr on 6/16/2014. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
FLOYD HAWKINS,
Plaintiff,
v.
UNKNOWN HILL, et al.,
Defendants.

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No. 1:14CV52 ACL

MEMORANDUM AND ORDER
This matter is before the Court upon the filing of plaintiff’s second amended complaint.
Because plaintiff is incarcerated at Southeast Correctional Center (“SECC”) and is proceeding in
forma pauperis, his second amended complaint is subject to pre-service review pursuant to 28
U.S.C. § 1915. After reviewing the second amended 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(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 Alacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319, 328 (1989);
Denton v. Hernandez, 112 S. 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 Aenough facts to state a claim to
relief that is plausible on its face.@ Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007).
1

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 Second Amended Complaint
Plaintiff brings this action under 42 U.S.C. ' 1983 against several defendants in their
individual and official capacities alleging violations of his civil rights. The complaint seeks
monetary and injunctive relief. Named as defendants are nine individuals who were engaged as
part of the medical staff at SECC: Unknown Hill (Nurse); Heather Unknown (Nurse); Brandy
Juden (Grievance Nurse); Becky Lizenbee (Nurse, LPN); Michael Hakala (Doctor); Unknown
“On Duty Nurse on 2-26-14”; J. Cofield (Regional Director); T. Bredeman (Regional Medical
Director); Unknown Dobbs (Nurse Practitioner). Plaintiff does not state whether these
individuals were employed by the State of Missouri (the Missouri Department of Corrections) or
Corizon, Inc.
2

Although the gist of plaintiff’s allegations are somewhat difficult to discern, it appears that
plaintiff is alleging that he was at some point prescribed pain medication (gabapentin) by
defendant Hakala for an injury to his testicles that occurred when he had an altercation with a
correctional officer at SECC.1 Although plaintiff does not state the exact time-frame the injury
allegedly occurred, by the documents attached to his second amended complaint, it appears that he
suffered pain from the injury in his testicles sometime in early 2013 and filed a grievance related to
his pain on May 10, 2013.2
In his grievance, plaintiff requested that his gabapentin be increased from 600mg to
800mg, due to an alleged increase in pain. In response to his request, plaintiff was sent to see a
specialist at Missouri-Delta on September 5, 2013, where it was noted that he had “normal testicles
with intact blood flow.” Plaintiff was then scheduled for an ultrasound of his testicles on
September 17, 2013, which showed “normal” histological findings except for a varicocele (“large
broken vessel”) in his scrotum.3 His request for an increase in his pain medication was apparently
granted in early October 2013, after an evaluation by a physician at SECC.
In the body of his second amended complaint, plaintiff states that “medications and therapy
treatment were cut off without justification. . .medical staff is denying a grievance agreement that
they already had made on 10-21-13.”4

He claims that a copy of this document was sent attached

1

There is an additional reference in a grievance response attached to plaintiff’s pleading that he
sought an increase in the gabapentin due to pain in his shoulder from an earlier injury, but plaintiff
does not mention the shoulder injury in his second amended complaint.
2
The Court takes judicial notice of the documents attached to plaintiff’s second amended
complaint, pursuant to Fed.R.Civ.P.10(c).
3
This was plaintiff’s third ultrasound of his testicles within the year.
4
There is no “grievance agreement attached to plaintiff’s second amended complaint dated
10-21-13. Rather, the Court believes plaintiff is referring to a document entitled “Offender
Grievance Appeal Response” with an “October 21, 2013, Date Received” on it. In this document,
plaintiff’s grievance appeal is noted as “resolved” because his gabapentin medication had already
3

to this second amended complaint. Plaintiff does not state when this alleged “cut off” in
medications is said to have occurred or if the “cut off” was due to change in his prescriptions or
because he was simply denied medical care that he had been allegedly prescribed.
Instead, plaintiff asserts, in a wholly conclusory manner, that “medical staff’s interruption
of treatment constituted deliberate indifference.” He then specifically alleges that defendants
Nurse Hill and Becky Lizenbee cut off his pain medications on “4-23-14.” However, plaintiff has
attached a copy of his medical record to his second amended complaint showing he received
800mg of gabapentin three (3) times daily on that date.
Plaintiff next claims that Nurse Heather “gave false information that led to” his medication
being cut off on May 16, 2014. However, plaintiff has neglected to say who actually failed to
provide him with, what the Court presumes was prescribed medication, on that date. Further,
plaintiff does not state whether the medication was allegedly completely “cut off” or if it was
simply decreased from one level to another level.
Plaintiff next states that defendant Juden, a grievance officer, failed to properly investigate
his grievances relating to the interruption of his prescribed treatment on May 14, 2014.5

been increased to 800mg on October 16, 2013. The document is signed by defendants J. Cofield
and T.Bredeman and is dated December 12, 2013. The “Appeal Response” cannot suffice to form
a “contract” between plaintiff and defendants as it does not show a meeting of the minds between
the two parties, but simply notes the chain of medical events that occurred in this matter. In fact,
the “Conclusion” of the “Appeal Response” specifically notes that plaintiff’s earlier grievance
request to increase his medication to 800mg overall was “not supported” based on the
“independent, discretionary medical judgment of the site physicians” and the records showed that
he had received “appropriate care and treatment” for his earlier “medical issues.”
5
Inmates do not have a constitutionally protected right to the prison grievance process. See Flick
v. Alba, 932 F.2d 728, 729 (8th Cir.1991); see also, Burnside v. Moser,138 Fed.Appx. 414 (3rd
Cir. 2005). And, Aa state grievance procedure does not confer any substantive constitutional right
upon prison inmates.@ Hoover v. Watson, 886 F.Supp. 410, 418 (D.Del.1995), aff'd 74 F.3d 1226
(3d Cir.1995).
4

However, plaintiff again fails to state who purportedly interrupted the prescribed treatment on that
date.
Plaintiff states in a conclusory fashion that Dr. Hakala, “interfered with prescribed
treatment” on February 26, 2014 and on May 13, 2013. As noted above, plaintiff was receiving
treatment in May 2013, according to the records he has attached to his second amended complaint.
From the medication records attached to plaintiff’s second amended complaint, it appears that he
was also receiving the 800mg of gabapentin, three (3) times daily, during February 2014 as well.
Plaintiff claims that defendant “On Duty Nurse on 2-26-14” refused his doctor’s slip and
thus denied him the right to see a doctor on that date. Plaintiff fails to state what his medical
needs were on that date such that he needed to see a doctor, and he does not state what he was told
when he asked to see the doctor or if the On-Duty-Nurse knew about his alleged medical
condition.
Plaintiff alleges that Nurse Dobbs did not order medication to relieve his pain on an
unspecified date and time for an unspecified condition. Thus, his allegations are entirely
conclusory against Nurse Dobbs.
Last, plaintiff asserts that defendants Cofield and Bredeman “approved [his] pain
medication in a grievance resolvement of 12-12-13 and now [the] allow my medication to be cut
off.” Plaintiff has not stated what medication these defendants are allegedly “allowing” to be “cut
off” or when the medication was cut off, or more importantly, what their personal involvement was
in the alleged cut off.6
6

ALiability 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 involved in or directly responsible for incidents that
5

Discussion
As noted above, plaintiff does not state in his second amended complaint whether
defendants are employed by the Missouri Department of Corrections (and thereby employees of
the State of Missouri) or Corizon, Inc., the company engaged by the State of Missouri to provide
medical care to persons incarcerated in the State. Additionally, plaintiff brings his claims against
defendants in both their individual and official capacities. Regardless of whether defendants are
employed by the State of Missouri or Corizon, Inc., his claims against them in their official
capacities are subject to dismissal.
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 either the State of Missouri or 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 with respect to plaintiff’s official capacity
claims.7
After carefully reviewing the second amended complaint, the Court finds that pursuant to
the Supreme Court's ruling in Iqbal, plaintiff’s legal conclusion, such as his dominant claim that
defendants were deliberately indifferent to his serious medical needs, is not entitled to an
assumption of truth. See Iqbal, 129 S.Ct. at 1950-51. The Court further finds that plaintiff has

injured plaintiff); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory
inapplicable in ' 1983 suits).
7
Moreover, the Court notes that a suit against the Missouri Department of Corrections is, in effect,
a suit against the State of Missouri. The State of Missouri, however, is absolutely immune from
liability under 42 U.S.C. ' 1983. Will v. Michigan Dep=t of State Police, 491 U.S. 58, 71 (1989).
6

failed to plead facts that show more than the "mere possibility of misconduct," with regard to an
alleged deliberate indifference to his medical needs; the pleading does not "plausibly suggest an
entitlement to relief." See id. In other words, even after considering alternative explanations for
defendants’ alleged misconduct with regard to the allegations in plaintiff’s complaint, the Court, in
the exercise of its judgment, finds that plaintiff's conclusions that he was medically mistreated is
not the most plausible explanation, and it is more likely that plaintiff merely disagreed with the
type of medical care that he received.
To state a claim for medical mistreatment, plaintiff must plead facts sufficient to indicate a
deliberate indifference to serious medical needs. 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 order
to show deliberate indifference, plaintiff must allege that he suffered objectively serious medical
needs and that defendants actually knew of but deliberately disregarded those needs. Dulany v.
Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997).
In the second amended complaint plaintiff states, in a conclusory fashion that he disagreed
with the amount of time it took his doctors and nurses to increase his medication from 600mg to
800mg of gabapentin. He further states, again in a conclusory fashion, that he did not think he
received the proper treatment for the injury to his testicles. However, the records attached to
plaintiff’s complaint show that plaintiff was being treated in the chronic pain clinic and that he had
regular monitoring of his pain medication, as well as regular visits with doctors and nurses, both
inside and outside of the Department of Corrections. The record also shows that plaintiff was sent
to see an outside specialist for pain in his testicles, and he received three ultrasounds on his
testicles in the span of a one-year period.
7

The mere fact that an inmate disagrees with the course of treatment does not, in and of
itself, suffice to establish a violation of the Eighth Amendment. Peterson v. CMS, 2012 WL
4108908 (E.D.Mo. September 18, 2012). Likewise, the denial of a particular course of treatment
does not constitute deliberate indifference. See Dulany,132 F.3d at 1239 (Athe Court is reminded
that >society does not expect that prisoners will have unqualified access to health care,= and that
>[a]s long as th[e] threshold [of deliberate indifference] is not crossed ... prison doctors remain free
to exercise their independent medical judgment= @); see also Vaughn v. Gray, 557 F.3d 904, 909
(8th Cir.2009) (an inmate's Eighth Amendment rights are not violated by defendants' refusal Ato
implement a prisoner's requested course of treatment@) (internal citation omitted). And, likewise,
prison physicians are free to exercise their independent medical judgment. See Meuir v. Greene
County Jail Employees, 487 F.3d 1115, 1118B19 (8th Cir.2007).
Because plaintiff has failed to state a plausible claim for deliberate indifference to his
serious medical needs, his consequential claim for an alleged “breach of the grievance agreement”
is also legally frivolous and will be dismissed pursuant to § 1915(e)(2)(B).8
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for extension of time to pay his initial
partial filing fee [Doc. #10] is GRANTED. Plaintiff shall pay an initial filing fee of $1.98 within
thirty (30) days of the date of this Memorandum and Order.

As noted above, A[i]n the context of a state prison system, an inmate grievance procedure is not
constitutionally required.@ Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). AIf the state
elects to provide a grievance mechanism, violations of its procedures do not deprive prisoners of
federal constitutional rights. Therefore, a state’s failure to follow its grievance procedures does not
give rise to a ' 1983 claim.@ Id.
8

8

IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the second amended complaint because it is legally frivolous or fails to state a claim
upon which relief can be granted, or both.
An appropriate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 16th day of June, 2014.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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