Hemingway v. Hill et al

Filing 4

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Lamon Taneal Hemingway, Sr. motion is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $ ;1.70 within thirty (30) days of the date of this Order.( Initial Partial Filing Fee due by 9/5/2017.) IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to defendants Nina Hill, Marc Curry, Molly Unknown, Cynthia Reese and Heather Shirrell in their individual capacities. Defendants shall be served through the waiver agreement the Court maintains with Corizon. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to is sue upon the complaint as to Corizon Healthcare, Kimberly Delisle, Michael Loomes, Antonia Johaan, Unknown Robinson, Larry Graham, Megan Crowe, Unknown Anderson, Cody Stanley, Jason Clements, Mark Boyt, Ryan Welch and Unknown Medical Doctor because, as to these defendants, the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to the offic ial capacity claims against defendants Nina Hill, Marc Curry, Molly Unknown, Cynthia Reese and Heather Shirrell. These claims are subject to dismissal. IT IS FURTHER ORDERED that this case is assigned to Track 5: Prisoner Standard. Signed by District Judge Rodney W. Sippel on 8/4/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
LAMON TANEAL HEMINGWAY,
Plaintiff,
v.
NINA HILL, et al.,
Defendants.

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No. 1:17-CV-0051 RWS

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Lamon Taneal Hemingway
(registration no.1101853), 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 the plaintiff does not have sufficient funds to pay the entire filing fee and will assess an
initial partial filing fee of $1.70. 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 sixmonth 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.1 A review of
plaintiff's account indicates an average monthly deposit of $8.50. Accordingly, the Court will
assess an initial partial filing fee of $1.70, 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 Alacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319,
328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (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, 550 U.S. 544, 570 (2007).
The Complaint2
Plaintiff, an inmate at SECC, brings this action pursuant to 42 U.S.C. § 1983, alleging
violations of his civil rights. Named as defendants are: Nina Hill; Kimberly Delisle; Michael
Loomes; Antonia Johaan; Unknown Robinson; Larry Graham; Megan Crowe; Unknown
1

The Court takes judicial notice of the certified account statement plaintiff submitted in
Hemingway v. Berry, No. 1:17CV21 AGF (E.D.Mo.).
2
The claims in this case are slightly different than the claims contained in plaintiff’s complaint in
Hemingway v. Hill, No.1:17CV30 RLW (E.D.Mo.).
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Anderson; Cody Stanley; Jason Clements; Mark Boyt; Ryan Welch; Unknown Medical Doctor;
Cynthia Reese; Heather Shirrell; Molly Unknown; Mark Curry; and Corizon Healthcare
Services. Plaintiff asserts that each of the alleged defendants are current healthcare and/or
mental health employees at SECC, employed by Corizon. Plaintiff sues defendants in both their
individual and official capacities.
Plaintiff claims to suffer from a seizure disorder and to regularly see nurse Nina Hill in a
chronic care clinic at the prison. He asserts that on February 2, 2017, he was seeing Nurse Nina
Hill on “sick call for other injuries,” and he began to tell Nurse Hill allegations about his
purported offender abuse claims, or use of the PREA mechanism at the prison. Plaintiff also
purportedly told Nurse Hill that he believed some of his seizures where psychological in nature.
Plaintiff states that he believes that later in February of 2017, Nurse Hill intentionally rediagnosed all of his seizures as psychological in nature, but she later refused plaintiff’s requests
to be seen by mental health providers at SECC. Plaintiff states that even when he placed himself
on suicide watch, Nina Hill refused to stop reducing his neurological seizure medications, which
plaintiff believes she was doing in retaliation for his use of the PREA reporting mechanism.
Plaintiff additionally states that when the mental health defendants stopped in to see him on
suicide watch, including defendants Curry, Molly Unknown, Cynthia Reese and Heather Shirrell,
they refused to do mental health counseling with him, but only wanted to know if he was actually
suicidal or not. Plaintiff believes that the mental health defendants’ failure to treat his
psychological needs was deliberately indifferent to his documented psychometric seizure
disorder.
Plaintiff fails to state which of the purported defendants refuse to adhere to his medical
lay-in.
Plaintiff seeks monetary damages and injunctive relief in his § 1983 complaint.

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Discussion
After reviewing the complaint in its entirety, the Court will order the Clerk to issue
process or cause process to issue on plaintiff’s claims of retaliation under the First Amendment
and for Eighth Amendment deliberate indifference against Nina Hill in her individual capacity
only.
The Court will also issue process on plaintiff’s claims against defendants Marc Curry,
Molly Unknown, Cynthia Reese and Heather Shirrell pursuant to Eighth Amendment deliberate
indifference in their individual capacities only for their purported failure to treat plaintiff’s
psychological needs when he was placed on suicide watch and thereafter his mental health needs
that coincided with his diagnosed “psychometric seizure disorder.”
Plaintiff’s claims against defendants Hill, Curry, Molly Unknown, Cynthia Reese, and
Heather Shirrell in their official capacities are subject to dismissal as plaintiff has not made a
custom or policy claim against Corizon, their employer. See 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).
Additionally, plaintiff’s claim against “Corizon Healthcare Services” fails for the same reason.
Plaintiff’s claims against Kimberly Delisle, Michael Loomes, Antonia Johaan, Unknown
Robinson, Larry Graham, Megan Crowe, Unknown Anderson, Cody Stanley, Jason Clements,
Mark Boyt, Ryan Welch and Unknown Medical Doctor are also subject to dismissal, as plaintiff
has not made any direct claims against these defendants. Madewell v. Roberts, 909 F.2d 1203,
1208 (8th Cir. 1990) (ALiability under ' 1983 requires a causal link to, and direct responsibility
for, the alleged deprivation of rights.@); 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).
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 $1.70
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 Nina Hill, Marc Curry, Molly Unknown, Cynthia
Reese and Heather Shirrell in their individual capacities. Defendants shall be served through the
waiver agreement the Court maintains with Corizon.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants
Nina Hill, Marc Curry, Molly Unknown, Cynthia Reese and Heather Shirrell 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 Corizon Healthcare, Kimberly Delisle, Michael Loomes, Antonia
Johaan, Unknown Robinson, Larry Graham, Megan Crowe, Unknown Anderson, Cody Stanley,
Jason Clements, Mark Boyt, Ryan Welch and Unknown Medical Doctor because, as to these
defendants, the complaint is legally frivolous or fails to state a claim upon which relief can be
granted, or both.

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IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the complaint as to the official capacity claims against defendants Nina Hill, Marc
Curry, Molly Unknown, Cynthia Reese and Heather Shirrell. These claims are subject to
dismissal. See 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that this case is assigned to Track 5: Prisoner Standard.
An Order of Partial Dismissal will accompany this Memorandum and Order.
Dated this 4th day of August, 2017.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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