Weeks v. Corizon Medical Services, Inc. et al

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis Doc. # 2 is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $13.85 within thirty (30) days from 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. IT IS FURTHER ORDERED that, as to defendants Corizon Medical Services, Inc., George A. Lombardi, and Bonnie Boley, the Clerk shall not issue process or cause process to issue, because the complaint is legall y frivolous and fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2) (B). IT IS FURTHER ORDERED that, as to plaintiff's First Amendment § 1983 and RLUIPA claims for injunctive relief against defendant Mi ssouri Department of Corrections, the Clerk shall issue process or cause process to issue upon the complaint, and all remaining claims against this defendant are DISMISSED, without prejudice. IT IS FURTHER ORDERED that, within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure, defendant Missouri Department of Corrections shall file a responsive pleading to plaintiff's First Amendment § 1983 and RLUIPA claims. IT IS FURTHER ORDERED t hat, pursuant to the Court's differentiated case management system, this case is assigned to Track 5B (standard prisoner actions). A separate Order of Partial Dismissal shall accompany this Memorandum and Order. Signed by District Judge Rodney W. Sippel on 1/25/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
JOHN M. WEEKS, JR.,
Plaintiff,
v.
CORIZON MEDICAL SERVICES,
INC., et al.,
Defendants.

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No. 2:12-CV-70-RWS

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of John M. Weeks, Jr.
(registration no. 1157879) 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 therefore, the motion will be
granted, and plaintiff will be assessed an initial partial filing fee. See 28 U.S.C. §
1915(b)(1). Furthermore, based upon a review of the complaint, the Court will order
process to issue as to the Missouri Department of Corrections and will dismiss this
action as to all remaining defendants. See 28 U.S.C. § 1915(e)(2)(B).
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 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. See 28
U.S.C. § 1915(b)(1). 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, 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. See 28 U.S.C. § 1915(a)(1),(2). A review of plaintiff's account statement
indicates an average monthly deposit of $69.25, and an average monthly account
balance of $16.52. Plaintiff has insufficient funds to pay the entire filing fee.
Accordingly, the Court will assess an initial partial filing fee of $13.85, 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
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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, 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
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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.
Moreover, in reviewing a pro se complaint under § 1915(e)(2)(B), the Court
must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404
U.S. 519, 520 (1972). The Court must also 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).
The Complaint and Supplements1
Plaintiff, an inmate at the Moberly Correctional Center, seeks injunctive relief
in this action for the violation of Section 3 of the Religious Land Use and
Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. §§ 2000cc-1, et seq.,
as well as his First and Fourteenth Amendment rights under 42 U.S.C. § 1983. The
named defendants are Corizon Medical Services, Inc. ("Corizon"), Missouri
Department of Corrections ("MDOC"), George A. Lombardi (Director, Missouri
Department of Corrections), and Bonnie Boley (Corizon Medical Services

The Court will liberally construe plaintiff's October 12 and October 24,
2012 letters to the Court [Docs. #4 and #5] as supplements to the complaint.
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Administrator, Moberly Correctional Center). Plaintiff is suing the individual
defendants in their official capacities.2
Plaintiff alleges that in 2008, 2009, 2011, and 2012, he was forcibly injected
with a "Purified Protein Derivative" ("PPD") tuberculosis test, in violation of his
sincerely held beliefs as a practicing member of The House of Yahweh.3 Plaintiff
contends that the PPD test contains human protein derivatives, which his religion
strictly forbids. Plaintiff states that he had often requested one of the alternative
tuberculosis tests, which are available, but the Missouri Department of Corrections
denied his requests, with the exception of the year 2010, when he was allowed to
have an x-ray as an alternative test. In addition, plaintiff states that in 2011, he was
issued conduct violations and was placed in administrative segregation for disobeying
an order and creating a disturbance when he refused the PPD test on religious
grounds. Plaintiff states that there are "alternative more reliable methods" to test for
tuberculosis, such as an x-ray or a microbiological test, and to accommodate the least
restrictive means to further a compelling governmental interest. Plaintiff alleges that

See Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir.
1995)(where a complaint is silent about defendant’s capacity, Court must interpret
the complaint as including official-capacity claims); Nix v. Norman, 879 F.2d 429,
431 (8th Cir. 1989).
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In 2008, plaintiff was confined at the Southeastern Correctional Center; in
2009, he was confined at the Farmington Correctional Center; in 2011, he was
confined at the Western Missouri Correctional Center; and in 2012 he was
confined at the Moberly Correctional Center.
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unless he is granted injunctive relief, he will continue to be irreparably injured by the
MDOC's forced administration of the PPD test.
Discussion
I. RLUIPA Claims
The Religious Land Use and Institutionalized Persons Act provides, in relevant
part:
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution, as defined
in section 1997 of this title, even if the burden results from a rule of
general applicability, unless the government demonstrates that
imposition of the burden on that person -(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc-1(a). "The Act defines 'religious exercise' to include 'any
exercise of religion, whether or not compelled by, or central to, a system of religious
belief.'" Cutter v. Wilkinson, 544 U.S. 709, 715 (2005)(quoting 42 U.S.C. § 2000cc5(7)(A)). "'A person may assert a violation of [RLUIPA] as a claim or defense in a
judicial proceeding and obtain appropriate relief against a government.'" Id. at 716
(quoting 42 U.S.C. § 2000cc-2(a)).

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Having carefully reviewed the complaint, the Court finds that plaintiff has
stated a RLUIPA claim against defendant MDOC. As such, process shall issue as to
this defendant.
As to defendants Corizon, Lombardi, and Boley, the Court will dismiss the
complaint for failure to state a claim. Plaintiff has failed to assert any facts or
allegations against these defendants, indicating that they were directly involved in or
were personally responsible for the violation of plaintiff's rights under RLUIPA.
II. Section 1983 First Amendment Claims
Plaintiff claims that MDOC's policy calling for the forced administration of
PPD tests violated his rights under the Free Exercise Clause of the First Amendment.
The Court finds that plaintiff has stated a First Amendment § 1983 claim for
injunctive relief against defendant MDOC.
Plaintiff has failed to assert any facts indicating that defendants Corizon,
Lombardi, and/or Boley were directly involved in or personally responsible for the
violation of plaintiff's First Amendment rights. Thus, the Court will dismiss the
complaint for failure to state a § 1983 First Amendment claim against said
defendants.

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III. Section 1983 Fourteenth Amendment Claims
1. Substantive Due Process
Plaintiff alleges that, in addition to his First Amendment rights, his Fourteenth
Amendment substantive due process rights were violated when he was forced, against
his religious beliefs, to undergo a PPD tuberculosis test.
At this point, it is important to note the difference between constitutional
claims arising under the Due Process Clause of the Fourteenth Amendment and those
arising under a more specific provision of the Constitution, such as the First
Amendment. United States Supreme Court precedent suggests that these two types
of claims should not be conflated. See Graham v. Connor, 490 U.S. 386 (1989). In
Graham, the Supreme Court rejected various lower courts’ reliance on substantive
due process standards in evaluating an excessive-use-of-force claim against a “free
citizen,” where such claims were covered by explicit provisions in the Constitution,
namely the Fourth Amendment. Id. at 392-95.4 Later, in Albright v. Oliver, 510 U.S.
266 (1994), the Supreme Court explained that “[w]here a particular Amendment
‘provides an explicit textual source of constitutional protection’ against a particular
sort of government behavior, ‘that Amendment, not the more generalized notion of

More specifically, the Court pointed to the Second Circuit’s four-factor
substantive due process test in Johnson v. Glick, 481 F.2d 1028, cert. denied, 414
U.S. 1033 (1973), as an illustration of what should not be used when an
enumerated constitutional right is available as a source of protection.
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substantive due process, must be the guide for analyzing these claims.’” Albright, 510
U.S. at 273(quoting Graham, 490 U.S. at 395); see also, Thaddeus-X v. Blatter, 175
F.3d 378, 387 (6th Cir. 1999)(applying analytical framework of First Amendment to
plaintiffs’ claims they were retaliated against for engaging in the constitutionallyprotected activity of accessing the courts; abrogating the Circuit’s prior decisions
imposing Fourteenth Amendment substantive due process test to prisoners’ claims of
retaliation in violation of an enumerated constitutional right).
Applying these precepts to the case at bar, the Court concludes that because
plaintiff’s substantive due process claims arose out of his attempts to refuse the PPD
test on religious grounds and to obtain an alternative form of testing that complied
with his religious beliefs, it is the First Amendment that must be the exclusive guide
for analyzing plaintiff’s constitutional claims. In other words, it is this particular
amendment that provides the explicit textual source of constitutional protection in
this case, and therefore, the more generalized notion of Fourteenth Amendment
substantive due process should not be used. See, e.g., Cornell v. Woods, 69 F.3d
1383, 1387-90 (8th Cir. 1995)(analyzing claim of retaliatory discipline exclusively
under First Amendment). Thus, because the First Amendment properly covers
plaintiff’s claims relative to tuberculosis testing, the Court will dismiss, without
prejudice, plaintiff’s Fourteenth Amendment substantive due process claims.

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2. Procedural Due Process
Plaintiff alleges that his Fourteenth Amendment procedural due process rights
were violated when he was placed in administrative segregation for refusing, on
religious grounds, the PPD test. For Fourteenth Amendment procedural due process
to be implicated, however, an inmate must be subjected to "atypical and significant
hardship . . . in relation to the ordinary incidents of prison life." Sandin v. Conner,
515 U.S. 472 (1995). Plaintiff's allegations do not indicate that he has suffered this
type of atypical and significant hardship in which the state might conceivably create
a liberty interest. Cf. id. at 485-86 (no atypical and significant hardship where inmate
spent thirty days in solitary confinement); Hemphill v. Delo, 124 F.3d 208 (8th Cir.
1997)(same; four days locked in housing unit, thirty days in disciplinary segregation,
and approximately 290 days in administrative segregation); Freitas v. Ault, 109 F.3d
1335, 1337-38 (8th Cir. 1997)(same; ten days administrative segregation and thirty
days on "on-call" status, as well as loss of higher paying job and numerous
privileges); Wycoff v. Nichols, 94 F.3d 1187, 1190 (8th Cir. 1996)(same; ten days
disciplinary detention and 100 days in maximum-security cell). For these reasons, the
Court will dismiss, without prejudice, plaintiff’s Fourteenth Amendment procedural
due process claims.

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3. Equal Protection
Plaintiff's conclusory claim that he is "also entitled to 'Equil [sic] Protection'
of the law" will be dismissed as legally frivolous and for failure to state a claim or
cause of action. The Equal Protection Clause requires the government to treat all
similarly-situated people alike, and "[a]s a threshold matter, '[t]o state an equal
protection claim, [a plaintiff] must have established that [he was] treated differently
from others similarly situated.'" Creason v. City of Washington, 435 F.3d 820, 823
(8th Cir. 2006) (quoting Johnson v. City of Minneapolis, 152 F.3d 859, 862 (8th Cir.
1998)). Thus, the equal protection doctrine is rooted in a comparison of the actual
treatment accorded one person with that actually accorded other persons or class of
persons, not in a comparison of the actual treatment accorded one person as measured
against the ideal treatment, proscribed by the norms of state law, which that single
person should have received. In the latter situation, there is simply no discrimination,
invidious or otherwise. Because plaintiff has failed to allege any facts indicating that
any of the named defendants invidiously discriminated against him in favor of
another person or class of persons, with no rational basis for any differentiation in
treatment, his equal protection claim will be dismissed under § 1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
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IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $13.85 within thirty (30) days from 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.
IT IS FURTHER ORDERED that, as to defendants Corizon Medical
Services, Inc., George A. Lombardi, and Bonnie Boley, the Clerk shall not issue
process or cause process to issue, because the complaint is legally frivolous and fails
to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that, as to plaintiff's First Amendment § 1983
and RLUIPA claims for injunctive relief against defendant Missouri Department of
Corrections, the Clerk shall issue process or cause process to issue upon the
complaint, and all remaining claims against this defendant are DISMISSED, without
prejudice.
IT IS FURTHER ORDERED that, within the time provided by the applicable
provisions of Rule 12(a) of the Federal Rules of Civil Procedure, defendant Missouri
Department of Corrections shall file a responsive pleading to plaintiff's First
Amendment § 1983 and RLUIPA claims.
IT IS FURTHER ORDERED that, pursuant to the Court's differentiated case
management system, this case is assigned to Track 5B (standard prisoner actions).
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A separate Order of Partial Dismissal shall accompany this Memorandum and
Order.
Dated this 25th day of January, 2013.

_________________________________
UNITED STATES DISTRICT JUDGE

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