Hardman v. Corizon Medical Services

Filing 12

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that Plaintiffs application to proceed in district court without prepaying fees or costs (Doc. 2 ) is GRANTED.IT IS FURTHER ORDERED that Plaintiff must pay the $15.41 initial partial filing fee within twenty-one (21) days of the date of this Order. IT IS FURTHER ORDERED that Plaintiffs motion for protective custody pending surgery (Doc. 3 ) is DENIED. IT IS FURTHER ORDERED that plaintiffs motions to appoint counsel (Docs. 6 and 8 ) are DENIED as moot.IT IS FURTHER ORDERED that Plaintiff's motion to substitute defendant Roxanne Anderson for Roxanne Unknown (Doc. 7 ) is GRANTED. The Clerk of Court shall substitute defendant Roxanne Anderson for defendant Roxanne Unknown.IT IS FURTHER ORDERED that Plaintiffs motion to amend the complaint to add a claim of deliberate indifference (Doc. 9 ) is GRANTED.IT IS FURTHER ORDERED that Plaintiffs motion to see an outside doctor (Doc. 11 ) is DENIED.IT IS FINALLY ORDERED that this case is dismissed without prejudice. A separate order of dismissal will accompany this Memorandum and Order. ( Initial Partial Filing Fee due by 10/13/2020.) Signed by District Judge Sarah E. Pitlyk on 9/22/20. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
GARY HARDMAN,
Plaintiff,
v.
CORIZON MEDICAL SERVICES, et al.,
Defendants.

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No. 1:20-CV-120-SEP

MEMORANDUM AND ORDER
This matter is before the Court on the application of self-represented plaintiff Gary
Hardman, an incarcerated person at Southeast Correctional Center, to proceed in the district
court without prepaying fees and costs. Having reviewed the motion and the financial
information provided in support, the Court concludes that Plaintiff is unable to pay the entire
filing fee, and will assess an initial partial filing fee of $15.41. See 28 U.S.C. § 1915(b)(1).
Additionally, for the reasons discussed below, the Court will dismiss the complaint pursuant to
28 U.S.C. § 1915(e)(2).
Initial Filing Fee Under Prison Litigation Reform Act
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
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. See 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 paid in full. Id.
In support of his application to proceed in the district court without prepaying fees and
costs, Plaintiff submitted his certified inmate account statement showing an average monthly
deposit of $77.08. The Court will therefore assess an initial partial filing fee of $15.41, which is
twenty percent of Plaintiff’s average monthly deposit.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief may be granted.
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 fails to state a claim upon which relief may 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).
“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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether a complaint states a plausible
claim for relief is a context-specific task that requires the reviewing court to draw upon judicial
experience and common sense. Id. at 679. The court must assume the veracity of well-pleaded
facts, but it need not accept as true “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555).
This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429
U.S. 97, 106 (1976). This means that “if the essence of an allegation is discernible,” the court

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should “construe the complaint in a way that permits the layperson’s claim to be considered
within the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015)
(quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even pro se complaints
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). Federal courts are not required to assume facts that are not
alleged, Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules so as to
excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S.
106, 113 (1993).
Background
Plaintiff has filed this case once before. On November 21, 2019, in this Court, Plaintiff
filed a § 1983 action against defendants Corizon Medical Services and Nina Hill, alleging that
they were deliberately indifferent to his severe medical needs. See Hardman v. Corizon Med.
Servs., No. 1:19-CV-209-JMB (E.D. Mo. filed Nov. 21, 2019) (“Hardman I”). Plaintiff’s
complaint was twelve pages and typed on the Court’s prisoner civil rights form complaint.
On February 11, 2020, the Court issued a Memorandum and Order in Hardman I
dismissing Plaintiff’s complaint on initial review for failure to state a claim. Id. at Doc. [8].
Plaintiff alleged Corizon based its treatment decisions on financial considerations, but the Court
concluded this claim was unsupported. The Court found Plaintiff had not raised his right to
relief above a speculative level and dismissed Plaintiff’s claims against Corizon. As to
Defendant Hill, the Court stated that Plaintiff had failed to establish Ms. Hill had denied or
delayed him any medical care or treatment. “The crux of plaintiff’s complaint is that the
medication is not working. In particular, he accuses Nurse Practitioner Hill of decreasing his
pain medication and not sending him to see a specialist. This allegation, however, amounts to a

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disagreement with a treatment decision, and does not constitute deliberate indifference.” Id. at 9.
The Court dismissed Plaintiff’s complaint on initial review under 28 U.S.C. § 1915(e)(2).
Plaintiff did not file an appeal.
The Complaint
Four months later, Plaintiff filed the instant complaint, which is the same 12-page typed
complaint as he filed in Hardman I. He has substituted a new first page, however, adding two
new defendants to the caption. He names as defendants the two former defendants from
Hardman I—Corizon Medical Services and Nina Hill—and adds two new defendants—Phil
Tippon, M.D., and Roxanne Unknown (Director of Nursing, Corizon). 1 Although he lists these
two additional defendants in the caption, neither is mentioned in the body of the complaint. The
body of the complaint is identical to that which was dismissed for failure to state a claim in
Hardman I.
Discussion
Plaintiff filed this action in forma pauperis, and the claims he asserts are duplicative of
those he brought in Hardman I. Although he has added Dr. Phil Tippon and Nurse Roxanne
Anderson to the caption of the case, he does not refer to these defendants in the body of the
complaint, and he brings no claims against them. Simply placing defendants’ names in the
caption is not enough to assert their responsibility. See Allen v. Purkett, 5 F.3d 1151, 1153 (8th
Cir. 1993) (agreeing with district court’s dismissal of two defendants who were named as
defendants in the complaint against whom no factual allegations had been made); Krych v.
Hvass, 83 F. App’x 854, 855 (8th Cir. 2003) (agreeing with district court’s dismissal of

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Plaintiff’s complaint names Roxanne Unknown, Director of Nursing, as a defendant. On July 2,
2020, Plaintiff filed a motion to change defendant Roxanne Unknown to Roxanne Anderson. Doc.
[7]. The motion will be granted. The Court will refer to this defendant as Roxanne Anderson.

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defendants who were merely listed in his complaint and who were not alleged to have been
personally involved in the constitutional violations). The Court will dismiss Defendants Tippon
and Anderson because no factual allegations have been made against them.
Plaintiff’s claims are entirely duplicative of his prior claims that were dismissed as
legally frivolous on initial review in Hardman I. Accordingly, the Court will dismiss Plaintiff’s
claims as legally frivolous under 28 U.S.C. § 1915(e) for the same reasons they have been
dismissed before. See Hardman I; see also Bennett v. City of Florissant Police Dept., No. 4:19CV-2725-JMB, 2019 WL 6525456, *3 (E.D. Mo. Dec. 3, 2019) (discussing res judicata effect of
prior § 1915(e) dismissals on later duplicative claims).
Additionally, § 1983 claims are analogous to personal injury claims and are subject to
Missouri’s five-year statute of limitations. See Sulik v. Taney County, Mo., 393 F.3d 765, 766-67
(8th Cir. 2005); Mo. Rev. Stat. § 516.120(4). Plaintiff’s claims arise out of medical care and
treatment he received prior to June 3, 2015, and are thus barred by the five-year statute of
limitations. For this additional reason, the Court finds that Plaintiff cannot state any plausible
claim for violations of his constitutional rights against Defendants and will dismiss the complaint
on initial review under § 1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s application to proceed in district court
without prepaying fees or costs (Doc. [2]) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff must pay the $15.41 initial partial filing fee
within twenty-one (21) 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 his name and the case
number.

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IT IS FURTHER ORDERED that Plaintiff’s motion for protective custody pending
surgery (Doc. [3]) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motions to appoint counsel (Docs. [6] and
[8]) are DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff’s motion to substitute defendant Roxanne
Anderson for Roxanne Unknown (Doc. [7]) is GRANTED. The Clerk of Court shall substitute
defendant Roxanne Anderson for defendant Roxanne Unknown.
IT IS FURTHER ORDERED that Plaintiff’s motion to amend the complaint to add a
claim of deliberate indifference (Doc. [9]) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion to see an outside doctor (Doc. [11])
is DENIED.
IT IS FINALLY ORDERED that this case is dismissed without prejudice. A separate
order of dismissal will accompany this Memorandum and Order.
Dated this 22nd day of September, 2020.

SARAH E. PITLYK
UNITED STATES DISTRICT JUDGE

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