Boyer v. Northeast Missouri Correctional Center et al

Filing 6

MEMORANDUM AND ORDER--HEREBY 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 $12.43 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 theremittance is for an original proceeding. FURTHER ORDERED that plaintiff shall submit an amended complaint on a court-provided form no later than thirty (30) days from the date of this Memorandum and Order. FURTHER ORDERED that upon submission of the amended complaint, the Court shall again review this action pursuant to 28 U.S.C. § 1915. FURTHER ORDERED that the Court shall mail to plaintiff a copy of the Courts Prisoner Civil Rights Complaint form. FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. # 4 ] is DENIED without prejudice. FURTHER ORDERED that plaintiff's motion for lien [Doc. # 5 ] is DENIED.(cc: finance/forms mailed to plaintiff) ( Response to Court due by 11/10/2012.). Signed by District Judge Jean C. Hamilton on 10/10/2012. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
JOSEPH H. BOYER,
Plaintiff,
v.
NORTHEAST MISSOURI CORR.
CENTER, et al.,
Defendants.

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No. 2:12CV61 JCH

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Joseph Boyer (registration no.
522390), an inmate at Northeast Correctional Center, for leave to commence this action
without payment of the required filing fee [Doc. #2]. 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 $12.43. See 28 U.S.C. § 1915(b)(1).
Additionally, the Court will order plaintiff to submit an amended 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
$62.14, and an average monthly balance of $10.82. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $12.43, 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); Denton v. Hernandez, 112 S. Ct. 1728,
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1733 (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 “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 127 S. Ct.
1955, 1974 (2007).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983 against Northeast Missouri
Correctional Center (“NECC”), Unknown Hurley (Warden), Corizon Medical Services,
Inc. (“CMS”) and Kendis Archer (doctor employed by CMS). The complaint seeks
monetary and injunctive relief.
Plaintiff alleges that he is suffering from liver cancer and is in great pain. He
claims that he was transferred into NECC in September of 2011 and was placed in the
Medical Transitional Care Unit under the care of Dr. Archer. Plaintiff claims that from
September 2011 on, Dr. Archer failed to provide him with adequate medical treatment
for his liver cancer, causing him severe pain. He claims that both CMS and Warden
Hurley failed to properly train and supervise defendant Archer, despite plaintiff’s
notification to both defendants that defendant Archer was failing to provide him with
adequate treatment for his disease, through IRRs and grievances. He further claims that
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defendant Archer delayed giving him the proper treatment, allowing his disease to
progress quickly and causing him additional pain and suffering. Thus, plaintiff claims
that all three defendants - CMS, Hurley and Archer - acted with deliberate indifference
to his serious medical needs in violation of the 8th Amendment.
Discussion
The complaint is silent as to whether defendants Hurley and Archer are being
sued in their official or individual capacities. Where a “complaint is silent about the
capacity in which [plaintiff] is suing defendant, [a district court must] interpret the
complaint as including only official-capacity claims.” Egerdahl v. Hibbing Community
College, 72 F.3d 615, 619 (8th Cir. 1995); Nix v. Norman, 879 F.2d 429, 431 (8th Cir.
1989).
Naming a government official in his or her official capacity is the equivalent of
naming the government entity that employs the official. Defendant Hurley, Warden of
NECC, is employed by the State of Missouri. Will v. Michigan Dep’t of State Police,
491 U.S. 58, 71 (1989).1 “[N]either a State nor its officials acting in their official
capacity are ‘persons’ under § 1983.” Id. As a result, the complaint fails to state a
claim upon which relief can be granted against defendant Hurley in his official capacity.
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Additionally, a suit against NECC is, in effect, a suit against the State of
Missouri. The State of Missouri, however, is absolutely immune from liability under
§ 1983. Will at 63. As such, plaintiff cannot bring suit under § 1983 against NECC.
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Similarly, in defendant Archer’s case, order to state a claim against him in his
official capacity, plaintiff must allege that a policy or custom of CMS was responsible
for the alleged constitutional violation. Monell v. Dep’t of Social Services, 436 U.S.
658, 690-91 (1978). The instant complaint does not contain any allegations that a
policy or custom of CMS was responsible for the alleged violations of plaintiff’s
constitutional rights. As a result, the complaint fails to state a claim upon which relief
can be granted against defendant Archer and CMS.2
Because of the serious nature of the allegations in the complaint, the Court will
not dismiss the case at this time. Instead, the Court will give plaintiff the opportunity
to file an amended complaint. Plaintiff shall have thirty (30) days from the date of this
Order to file an amended complaint on a court-provided form. Plaintiff is warned that
the filing of an amended complaint replaces the original complaint, and claims that are
not re-alleged are deemed abandoned. E.g., In re Wireless Telephone Federal Cost
Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). If plaintiff fails to file an

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If plaintiff had named defendants in their individual capacities it appears that his
failure to train claims would survive review under § 1915. Although the doctrine of
respondeat superior does not apply to claimed violations of 42 U.S.C. § 1983, Crooks
v. Nix, 872 F.2d 800, 804 (8th Cir.1989), a plaintiff may, under a theory of direct
liability, maintain a § 1983 claim against a prison or CMS official whose failure to
train, supervise, direct or control the actions of a subordinate is such that it constitutes
deliberate indifference to the inmates' serious medical needs. Id; see also Moyers v.
Buescher, 806 F. Supp. 218, 220 (E.D. Mo. 1992).
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amended complaint on a court-provided form within thirty (30) days, the Court will
dismiss this action without prejudice.
Plaintiff’s motion for appointment of counsel will be denied at this time.
Although plaintiff has alleged serious claims, none of his claims have, of yet, survived
frivolity review. Thus, counsel is simply not warranted at this time. Plaintiff may, of
course, move for counsel at a later time, if it appears that counsel is warranted if this
case progresses.
Plaintiff’s “motion for lien” will also be denied. No such motion or Rule (74.08)
is recognized by this Court, and the Court finds plaintiff’s references to himself as a
“judgment creditor” to be legally frivolous.
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
$12.43 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.

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IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint
on a court-provided form no later than thirty (30) days from the date of this
Memorandum and Order.
IT IS FURTHER ORDERED that upon submission of the amended complaint,
the Court shall again review this action pursuant to 28 U.S.C. § 1915.
IT IS FURTHER ORDERED that the Court shall mail to plaintiff a copy of
the Court’s Prisoner Civil Rights Complaint form.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #4] is DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion for lien [Doc. #5] is
DENIED.
Dated this 10th day of October, 2012.

/s/Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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