Benford v. Dunklin County et al

Filing 10

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Terry Lewis Benford. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis (Docket No. 2) is GRANTED. I T IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $3.78 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 incl ude upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) the statement that the remittance is for an original proceeding. IT IS FURTHER ORDERED that defendants Dunklin County and Nicole Green are DISMISSED from this action. IT IS FURTHER ORDERED that the official capacity claims against defendants Ashley Grisham, Gina Whitlock and Dr. Charles Pewitt are DISMISSED. IT IS HEREBY CERTIFIED that an appeal from this partial dismissal would not be taken in good faith . IT IS FURTHER ORDERED that the Clerk of Court shall issue process, or cause process to issue, upon defendants Ashley Grisham, Gina Whitlock, and Dr. Charles Pewitt. The defendants shall be served by issuance of summons and service by the U.S. Marshal's Office at the Dunklin County Justice Center, 1175 Floyd Street, Kennett, MO 63857. (Initial Partial Filing Fee due by 5/25/2018.) Signed by District Judge Ronnie L. White on 4/25/18. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

TERRY LEWIS BENFORD,
Plaintiff,
v.

DUNKLIN COUNTY, et al.,
Defendants.

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No. 1: 18-cv-5-JMB

MEMORANDUM AND ORDER

This matter is before the Court on the motion of plaintiff Terry Lewis Benford for leave
to commence this civil action without prepayment of the required filing fee. Having reviewed
the motion and the financial information submitted in support, the Court has determined to grant
the motion, and assess an initial partial filing fee of $3.78. See 28 U.S.C. § 1915(b)(l). In
addition, for the reasons discussed below, the Court will dismiss all but the individual capacity
claims against defendants Ashley Grisham, Gina Whitlock and Dr. Charles Pewitt.
28 u.s.c. § 1915(b)(l)

Pursuant to 28 U.S.C. § 1915(b)(l), a prisoner bringing a civil action informapauperis
is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his
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
$10.00, until the filing fee is fully paid. Id
In support of the instant motion, plaintiff submitted an inmate account statement showing
an average monthly balance of $18.89. The Court will therefore assess an initial partial filing fee
of $3.78, which is twenty percent of plaintiffs average monthly balance.
Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2)(B), the Court is required to dismiss a complaint filed in

forma pauperis if it 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 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). 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, 550 U.S. 544,570 (2007).
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, 556 U.S. 662, 679
(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 678. Second, the Court
must determine whether the complaint states a plausible claim for relief. Id at 679. This is a
"context-specific task that requires the reviewing court to draw on its judicial experience and
common sense." Id

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The plaintiff is required to plead facts that show more than the "mere possibility of
misconduct." Iqbal, 556 U.S. at 679. The Court must review the factual allegations in the
complaint "to determine if they plausibly suggest an entitlement to relief." Id. at 681. When
faced with alternative explanations for the alleged misconduct, the Court may exercise its
judgment in determining whether plaintiffs proffered conclusion is the most plausible or
whether it is more likely that no misconduct occurred. Id. at 680-82.
Pro se complaints are to be liberally construed, Estelle v. Gamble, 429 U.S. 97, 106
(1976), but they still must allege facts which, if true, state a claim for relief as a matter of law.
Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980).

The Court must weigh all factual

allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v.
Hernandez, 504 U.S. 25, 32 (1992). Federal courts are not required to "assume facts that are not
alleged, just because an additional factual allegation would have formed a stronger complaint."
Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004).
The Complaint

At present, plaintiff is an inmate at the Eastern Reception, Diagnostic and Correctional
Center. At the time of the events giving rise to the complaint, he was incarcerated at the Dunklin
County Justice Center. He brings this action pursuant to 42 U.S.C. § 1983 against Dunklin
County, Nicole Green, Ashley Grisham, Gina Whitlock, and Dr. Charles Pewitt. He sues the
defendants in an official and individual capacity. In the complaint, plaintiff states that he filed
grievances because he was not given medical care, including insulin, for diabetes. He states he
followed the jail's grievance procedure, but now believes he must file this lawsuit because his
federally-protected rights were violated.
Plaintiff sets forth his claims in the format of describing grievances he has filed.
Liberally construed, however, he can be understood to allege that, in approximately October
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and/or November of 2017, Whitlock, Grisham, and Pewitt were aware of the fact he was
diabetic, but refused to provide him with the necessary medical treatment, including insulin. He
also can be understood to allege that Grisham denied plaintiff necessary medical evaluations
because he was unable to pay for them. The Court concludes, for purposes of initial review, that
plaintiff has stated claims of deliberate indifference against Whitlock, Grisham, and Pewitt in
their individual capacities.
Defendant Dunklin County, and the official capacity claims against the individual
defendants, will be dismissed. To state a claim against a municipality, or against a government
official in his or her official capacity, a plaintiff must allege that a policy or custom of the
government entity is responsible for the alleged constitutional violation. Monell v. Dep 't of
Social Services, 436 U.S. 658, 690-91 (1978), Will v. Michigan Dep 't of State Police, 491 U.S.
58, 71 (1989).

The instant complaint contains no allegations that a policy or custom of a

government entity was responsible for the alleged violations of plaintiffs constitutional rights. It
therefore fails to state a claim against Dunklin County or the defendants in their official
capacities.
Plaintiff claims that Green either responded inadequately to his grievances, or ignored
them entirely.

In addition, throughout the complaint, plaintiff generally complains that

grievances he filed were either improperly addressed or ignored. However, there is no federal
constitutional right to a prison grievance procedure, and neither a state law nor a state policy
creates one. If a jail or prison elects to provide a grievance mechanism, violations thereof will
not give rise to a§ 1983 claim. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (prison
officials' failure to process or investigate grievances, without more, is not actionable under §
1983; grievance procedure is procedural right only and does not confer substantive right on

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inmate). Therefore, plaintiffs claims against Green, and all of his claims stemming from the
manner in which his grievances were handled, are subject to dismissal.
Plaintiff can also be understood to allege that certain jail policies, including those
governing distribution of medication, were not followed. However, it is well established that an
internal jail policy or procedure does not create a constitutional right, and a jail official's failure
to follow a jail's policy or procedure does not rise to the level of a § 1983 claim. Phillips v.
Norris, 320 F.3d 844, 847 (8th Cir. 2003) (citing Kennedy v. Blankenship, 100 F.3d 640, 643

(8th Cir. 1996)); see also Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997) (failure to
follow prison policy is not basis for § 1983 liability).
Plaintiff also alleges that Whitlock threatened to use a taser on him, and used profanity
when speaking to him. These allegations do not state claims of constitutional significance. See
Burton v. Livingston, 791F.2d97, 99 (8th Cir. 1986) (mere words, without more, do not invade a

federally-protected right).
Plaintiff can also be understood to allege that the jail's law library is inadequate.
However, he does not allege that the lack of the library or other resource deprived him of some
specific opportunity to defend himself, or advance a viable legal claim, in a criminal appeal,
postconviction matter, or civil rights action alleging violation of his constitutional rights. He
therefore fails to state a claim under the First Amendment. See Sabers v. Delano, 100 F.3d 82,
84 (8th Cir. 1996) (per curiam) (citing Lewis, 518 U.S. 343); see also Hartsfield v. Nichols, 511
F.3d 826, 833 (8th Cir. 2008) (without an articulation of how the alleged deficiency actually
blocked access to filing a complaint, the plaintiffs alleged injuries are merely speculative).
Finally, plaintiff alleges that Pewitt and Grisham once gave him the wrong medicine and
he suffered an allergic reaction, and Grisham failed to maintain the confidentiality of his medical

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information.

These allegations are tantamount to medical malpractice or negligence, not

deliberate indifference. See Daniels v. Williams, 474 U.S. 327, 328 (1986) (the Constitution is
not implicated by a negligent act of an official causing unintended loss of or injury to life,
liberty, or property); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (medical malpractice does not
amount to a claim of constitutional dimension "merely because the victim is a prisoner").
Accordingly,
IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis
(Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $3.78 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) the statement that the remittance is for an
original proceeding.
IT IS FURTHER ORDERED that defendants Dunklin County and Nicole Green are
DISMISSED from this action.
IT IS FURTHER ORDERED that the official capacity claims against defendants
Ashley Grisham, Gina Whitlock and Dr. Charles Pewitt are DISMISSED.
IT IS HEREBY CERTIFIED that an appeal from this partial dismissal would not be
taken in good faith.
IT IS FURTHER ORDERED that the Clerk of Court shall issue process, or cause
process to issue, upon defendants Ashley Grisham, Gina Whitlock, and Dr. Charles Pewitt. The
defendants shall be served by issuance of summons and service by the U.S. Marshal's Office at
the Dunklin County Justice Center, 1175 Floyd Street, Kennett, MO 63857.

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Dated

this~

of April, 2018.

17<~//4&

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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