Murphy v. Campbell et al
Filing
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OPINION, MEMORANDUM AND ORDER re: 2 ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.75 within thirty (30) days of the date of this Order. FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to all of the defendants. FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants shall reply to plaintiff's claims wi thin the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. ( Initial Partial Filing Fee due by 6/30/2012.). Signed by Honorable Henry E. Autrey on 5/30/12. (CEL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
MICHAEL MURPHY,
Plaintiff,
v.
GARY CAMPBELL, et al.,
Defendants.
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No. 2:12CV22 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
171394), an inmate at Northeast Correctional Center, for leave to commence this
action without payment of the required filing fee. For the reasons stated below, the
Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and
will assess an initial partial filing fee of $1.75. See 28 U.S.C. § 1915(b)(1).
Furthermore, after reviewing the complaint, the Court will order the Clerk to issue
process or cause process to be issued on 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 six-month 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. A review of plaintiff’s account indicates an average monthly deposit of
$8.75, and an average monthly balance of $0. Plaintiff has insufficient funds to pay
the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$1.75, 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 “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
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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).
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 Complaint
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Plaintiff, an inmate at Northeast Correctional Center (“NECC”), brings this
action for monetary damages pursuant to 42 U.S.C. § 1983 alleging violations of his
civil rights. Named as defendants are: Corizon, Inc., formerly known as Correctional
Medical Services (“CMS”); Gary Campbell (Doctor, Corizon, Inc.); and Thomas
Cabrera (Medical Director, Corizon, Inc.). Plaintiffs Cabrera and Campbell are
named in their individual capacities.
In his complaint for monetary and injunctive relief, plaintiff claims that
defendants Cabrera and Campbell have been deliberately indifferent to his serious
medical needs in violation of the Eighth Amendment. Specifically, plaintiff claims
that prior to 2010 he had existing injuries to both of his ankles which caused him
severe pain and difficulty in ambulating. Plaintiff asserts he had previously been
prescribed pain medication and specialized orthopedic shoes to deal with his
disability, but that when he was transferred to NECC, defendant Cabrera refused to
provide him with these measures due to the cost of the orthopedic shoes. Plaintiff
asserts that defendant Campbell also bluntly denied his request for the orthopedic
shoes, stating that he would not approve this method of treatment due to the cost and
that he would only approve defendant Cabrera’s use of the cheapest method of
treatment because plaintiff would be released from prison in a couple of years.
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Plaintiff states that he was provided with ankle sleeves and shoe insoles that provided
him with no relief or support and in fact caused him additional pain.
Plaintiff asserts that he consistently and repeatedly complained to defendants
Campbell and Cabrera that the insoles and ankle sleeves did not alleviate his pain and
that he was still in severe, ongoing pain but that defendants failed and refused to
provide plaintiff with any further treatment. Plaintiff asserts that his ankles and feet
worsened as a result of the lack of treatment, causing severe swelling, muscle, tendon,
bone and nerve damage, and that defendants still refused to provide him effective
treatment and even went so far as to remove him from any effective pain
prescriptions. Plaintiff claims that defendants acted with deliberate indifference to
his serious medical needs, in part, due to policies maintained by their employer,
Corizon, which encouraged their employers to minimize health care costs. Plaintiff
additionally alleges that defendants rejected his claims for additional treatment
because he had an impending release date and they made a risk assessment of the
necessary medical costs versus the possibility of litigation if they failed to provide
plaintiff with proper treatment.
The allegations set forth in the complaint against defendants Campbell and
Cabrera state a claim for relief for deliberate indifference to plaintiff’s serious
medical needs, pursuant to the Eighth Amendment. As such, the Court will order the
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Clerk to issue service of process on plaintiff’s complaint with respect to these two
defendants.
Plaintiff additionally alleges in his complaint that Corizon has a policy, or has
instituted a custom, of failing to provide expensive auxiliary aides for inmates’
disabilities, and that it was this policy or custom that resulted in, or was additionally
responsible for, the purported violations of his constitutional rights. Plaintiff also
claims that Corizon has a monetary incentive to minimize the amount of funds spent
on medical costs for the inmates, which negatively impacts the quality of medical care
provided to the inmates, like himself, by the doctors employed by Corizon. Plaintiff’s
allegations properly state a claim against Corizon for deliberate indifference to his
serious medical needs. As such, the Court will order the Clerk to issue process on
plaintiff’s complaint as to defendant Corizon.
Accordingly,
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 $1.75 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
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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 the Clerk shall issue process or cause
process to issue upon the complaint as to all of the defendants. Defendants shall be
served in accordance with the waiver agreement the Court maintains with Corizon,
Inc./Correctional Medical Services.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants 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 this case is assigned to Track 5B: Prisoner
Standard.
Dated this 30th day of May, 2012.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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