Krauss v. Holcomb et al

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis is GRANTED. [ECF No. 2] IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $10.00 within twenty-one (21) days of the date o f 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 FURIHER ORDERED_that this action is DISMISSED without prejudice pursuant to 28 U.S.C. § 1'115(e)(2)(B).IT IS FURTHER ORDERED that plaintiff's motion to appoint counsel is DENIED asmoot. [ECF No. 4] An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 5/24/2018. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
PAUL W. KRAUSS,

)
)
)
)
)
)

Plaintiff,
v.

JAY HOLCOMB, et al.,

No. 1:17-CV-218 DDN

)
)

Defendants.

)

MEMORANDUM AND ORDER
Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42
U.S.C. § 1983. Having reviewed plaintiffs financial information, the Court assesses a partial
initial filing fee of $10.00, which is reasonable based en the information the Court has about
plaintiffs finances. 1 See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997). Furthermore,
based upon a review of the complaint, the Court frnds thm the complaint should be dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B) .

.Standard of Review
Under 28 U.S.C. § 1915(e), the Comt is required to cbmis.;; a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a cl.aim upon which relief can be granted.
To state a claim for relief, a complaint must plead. more than "legal conclusions" and
"[t]hreadbare recitals of the elernents of a cause of action [that are] supported by mere
conclusory statements." Ashcroft v. lqbai, .).)(, u.S. 662, 678 (2009)..

1

A plaintiff must

Plaintiff has submitted a certified inmate accourn: strn:ement, tut because plaintiff has not been
incarcerated at the Mississippi County Detention Center for six months, the statement reflects
only one month's deposits. Because this like~y doe:> 11oi: r 1~prcs.ent w1 average month's deposits,
the Court has assessed a lower initial filing fee than the statutory 20 percent of an average
month's deposits. See 28 U.S.C. § !9l5(b)(2).

demonstrate a plausible claim for relief, which is more thtff.1 a "mere possibility of misconduct."

Id. at 679. "A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Id. at 678. Determining whether a complaint states a plausible claim for relief is a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
When reviewing a complaint under 28 U.S.C. § l915(e), fee Coart accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.

The Cont.plaim
Plaintiff, an inmate at Mississippi Coun'L.f Detention Center (''MCDC"), filed this civil
rights action under 4'2 U.S.C. § 1983, alleging the MCDC violated his Eighth Amendment right
to be free of cruel and unusual punishment.

He also brings claims against two individual

defendants, Jay Holcomb and Faith [Unknown], alleging these defendants stole his cell phone
from his personal property. Plaintiff has aiso name(, as defendants the Missouri Highway Patrol
and Judge S. Rob Ba:rker.
Plaintiff alleges two claims ur:der the Eighth Amendment, one for failure to treat his
tendonitis in his right wrist, and on~ for failure to treat his suicidal thoughts. Plaintiff alleges the
tendon in his wrist snapped, causing hin1 intense 9air1, a:1d ne was not rn.ken to the emergency
room for four and a half hours. He also alleges unnamed srnff at the MCDC were told he was
suicidal, but it took staff thirty-five days to prescribe medication and counseling.
Finally, plaintiff alleges due process vioiatit:ms against Judge S. Rob Barker for allegedly
improperly signing a search warrant.
$1,000,000.00.

For relier~ pla~ndff seeks monetary damages of

Discuss;on
Plaintiff's basic claims are twofold: (1) defendants Jay Holcomb and Faith [Unknown]
stole his phone; and (2) defendants violated his Ei<,?:hth Amendment rights when they (a) did not
immediately send him to the emergency room after his tendon injury, and (b) did not give him
medications and counseling for thirty-five days afl:~.r notice that he \Vas suicidal.
As to plaintiff's complaints that

c.ieiendani.~;

phone, there is no cause of action under 42 U.S. C.
property where the state provides an adequate

~)

Holcomb and Faith [Unknown] stole his

J 983 for cnconstitutional taking of personal

po'.~i.-deprivation

remedy. E.g., Clark v. Kansas

City Mo. Sch. Dist., 375 F.3d 692, 703 (8th Ci:. 2004). lf the taking of property by prison
officials is intentional and the state proviries an a<lequace post,deprivation remedy, there is no
violation of due process. Hudson v. Palmer, 468 U.S. :5 i 7 (1984); Parratt v. Taylor, 451 U.S.
527 (1981), overruled on other grounds, DanieJs v. Williams, 4i4 U.S. 327, 328 (1986);
Orebaugh v. Caspari, 910 F.2d 526,

s:n

(6th C:..:" 1990) (taking did not violate due process

because Missouri prisoner had adequate pos(-depr).vation remedy). J:Jlaintiff does not allege that
he lacks an adequate post-deprivation remeciy. Missouri provides the pos1-deprivation remedy of
replevin for recovery of personal property. ld.; Jvfo. I<... Civ . .i' . 99.\Jl ·· 99.15. As a result,
plaintiff's complaint regarding the theft of his phone will be O.ismissed fo:r failure to state a claim
upon which relief can be granted.
As to plaintiff's Eighth Amendment mt;oical claims, he staies mat he has tendonitis in
his right wrist. Before being: incarcerated, plaintdt·~-: doctor toid hiirn that his tendonitis required
surgery. Plaintiff states his tendon ·'iinaHy snapp.o::d" ::::t MCDC on NoYember 22, 2017, but he
was not seen in the emergency room for more -cnan 1onr nours.

fl.aintlif was treated in the

emergency room, and he has not alleged any fmther harm. Plaintiff does not allege that the brief

delay in treatment was responsible for aggravating his condition. "The Constitution does not
require jailers to handle every medical complaint ci'I quickly as ~ad: inmate might wish." Jenkins

v. County of Hennepin, .Minn., 55'/ F.3d 628, 632 (8th Cii. :?..009) (citing Johnson v. Hamilton,
452 F.3d 967, 973 (8th Cir. 2006)). A delay as brief and as non-detrimental as plaintiff alleges
does not state a claim for deliberate indifference to his

se,~·ious

rnedical needs. See Johnson, 452

F.3d at 973 (concluding that a on~-monfr1 delay iD treating a fractured finger did not rise to a
constitutional violation); Givens v. Jones, 900 ?.;>i 1229, 11.:'.·13 \ i3t:n Cu. 19 )0) (finding that a
prisoner's claim for delay of one month between co:npiaint of leg pain and visit with doctor was
insufficient to state a constitutional claim absent

~1Hegado11s

the

'~ondition

required immediate

attention or the delay in ·ffeai.ment aggravaced the ccrnlition).
Likewise, plaintiff states that he told 'ail srn.fi'' ai:

!~\CDC

thai: he was suicidal but that it

took "them" thirty-five days to tre:i!.t him with rneciication and counsdmg. Again, plaintiff does
not allege that the delay in treatment was responsioie ior aggravaLng his cor:dition. Id. Absent
such allegation, plaintiff has failed to state a plzwsioie dairn.

Morl'!over, plaintiff does not

identify any named defendant who deliberately cisn;gardt!d his request. To state a claim for
cruel and unusual punishment, plainfr;f mus;: allege that he ha<l e, sedo !JS rnc:dical need and that
defendant knew of and deliterately disreganled. :See Jlarmet v. Brennan, S 11 C.S. 825, 834
(1994). Plaintiff's statemem: that he tokl "all staff' of h1~, ~,.iciO.al rimughts, and it took "them"
too long for treatment is tuo conclusmy to stme

&

plhusible claim aostnt any allegation that any

defendant deliberately disregarded his meoic.-:J nee..-..s.

Twombly, 550 U.S . at 55:5) ("Threadbaw :t:citais

See lqba:, 556 U.S. at 678 (citing

ti:\e ek.nien·:3 of a c.mse

r.)i a.crion, supported

by mere conclusory statements, do nm: sufi!ce."). For these reasons, plaimiff s claims of Eighth

Amendment violations arising out of his medical need~,

wrn

be dismissed under 28 U.S.C. §

1915(e)(2).
As to plaintiff's claims agaimt defendan1 Missouri Highway Patrol, these claims are
barred by the Eleventh Amendment. See Alabamu v. Pugh, 433 U.S. 781, 782 (1978). A suit
against the Missouri Highway Patrol is, in effect. a rnit against the State of Missouri; however,
the State of Missouri is not a "persan" for purpose·, ..:if a § 1%3 acti.on. Wlll v. 1vfichigan Dept. of

State Police, 491 U.S. 58, 63 (1989). "[N]either
capacity are 'persons' under § 1%3." Ia'. As

B

E

State no:t its officials acting in their official

rtrnit_, fae cornplaim fails to stat1~ a claim upon

which relief can be granted against defendant \1tis.:our}
1

!Ii~)1wciy

Patrol and any individual

defendants in their officiai capacities.
Additionally, plaintiffs claim agains( the

~vi CDC

is l;;gaily frivofous because lt cannot be

sued. Ketchum v. Cizy of West .Memphis, Ark., S•7•} F.2d 81, &2 (8th Cir. i 992) (depanments or
subdivisions of local government are "not juridical eni:ities
Finally,

plaint~ff' s

su«.b],~

as such.'').

complaint is legally fri v~Jious as Lo Judge S. Rob Barker because

judges are "entitled to absolute immunity for all judici~l actions that are not 'taken in a complete
absence of all jurisdiction."' Penn v. Uaited Swies, .~~~s F.jc: 'j~6, "i'89 (8th Cit. 2003) (quoting

Mireles v. Waco, 502 U.S. 9, 1 i-12 (199 i)). Judicial irr;rnunity is overcome only where the
alleged actions are "not taken in c.hc judge's Judicial capacily' or were "taken in the complete
absence of all jurisdiction." J\tliret'es v. f'Voco, 502 U.S. at 11--12. i'laintiff has failed to allege
any action by the Judge Barker in signing the search warra:..1t was :aor~jueiicial in nature or taken
without jurisdiction. Plaintiff has failed to state a r;Jaim upon '..Yhicl1 relief can be granted against
the defendant judge.
Accordingly,

:;

IT IS HEREBY ORDERED that pldntiff':; motion to pr1)ceed in forma pauperis is
GRANTED. [ECF No.

21

IT IS FURTHER ORDERED th21t

plai11~iff

within twenty-one (21) days of ::he date of

mus1 pay an initial filing fee of $10.00

thi~_'. n~de::.

PJaintff i:; instructed to make his

remittance payable to "Clerk, United States District Comt," and to include upon it: (1) his name;
(2) his prison registration number; ( =s) the .::ase number; i:.nd (4) that the remittance is for an

original proceeding. 2

IT IS FURIHE.K

ORfiili~fd<.:_O

li°'.wt tb:> a_ci1i.::n

1~1 D!t~MiSS.KD

w,thout prejudice

pursuant to 28 U.S.C. § 1'115(e)(2)(B).
IT IS FURTHER ORDERED that plainti11's motion rn appomt counsel is DENIED as
moot. [ECF No. 4]

An Order of Dismissal will accompany this Memorandum and Order.
Dated this '.L:4fo aay of May, 2{J Jo.

J

U "' D STATES DISTRICT JUDGE

Prisoners must pay the full amount of the $350 filing fre. After payment of the initial partial
filing fee, the prisoner is requirec ~a 1·nake mc,C,)iy pa11m:at: ui 2C _pe_:-i:ent of the preceding
month's income credited to the prisoner's account The agency having custody of the prisoner
will deduct the payments and forward them to the Court eacn time the amount in the account
exceeds $10. 28 U.S.C. § 1915(b)(2).

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