Calhoun v. Corizon Correctional Health Care et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $58 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 orig inal proceeding. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint within thirty (30) days of the date of this Memorandum and Order. If plaintiff fails to file an amended complaint, the Court will dismiss this action without prejudice. Signed by District Judge Catherine D. Perry on September 9, 2014. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
MAJOR CALHOUN,
Plaintiff,
v.
CORIZON CORRECTIONAL HEALTH
CARE, et al.,
Defendants.

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No. 2:14 CV 88 CDP

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Major Calhoun (registration no.
1006811), 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 $58. See 28 U.S.C. § 1915(b)(1). Additionally, the Court finds that the complaint fails to
state a claim. Rather than dismissing the case, however, the Court will allow plaintiff to file 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 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, 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 $288, and an average monthly balance
of less than $288. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $58, 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 Alacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319,
328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (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
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983 for alleged deliberate indifference to
his serious medical needs. Plaintiff alleges that he suffered an injury to his right wrist in 2011.
His wrist was X-rayed, and a prison doctor told him that he suffered a simple sprain. Plaintiff

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says he actually had a fracture “resulting in a bone being chipped.” Plaintiff claims he requested
help from defendants for two years because the pain in his wrist continued to get worse.
Plaintiff asserts that his wrist was X-rayed a second time in 2013. The X-ray revealed
that “his condition had become more serious.” Plaintiff saw an outside doctor, and he claims that
the doctor told him he should have had surgery soon after his wrist was fractured. Plaintiff
alleges that defendants were deliberately indifferent to his wrist pain and that he will suffer
unnecessary pain for the rest of his life.
Discussion
“Liability under ' 1983 requires a causal link to, and direct responsibility for, the alleged
deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); see Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (“Because vicarious liability is inapplicable to Bivens and
' 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official=s own individual actions, has violated the Constitution.”). In the instant action, plaintiff
has not set forth any facts indicating that defendants were directly involved in or personally
responsible for the alleged violations of his constitutional rights. It is not sufficient for plaintiff
to allege that “defendants” withheld medical care from him. He must allege specific facts about
each defendant individually to show direct responsibility for the alleged harm As a result, the
complaint fails to state a claim upon which relief can be granted.
In order to state a claim against defendant Corizon, plaintiff must allege that there was a
policy, custom or official action that caused an actionable injury. Sanders v. Sears Roebuck &
Co., 984 F.2d 972, 95-76 (8th Cir. 1993). Plaintiff has not alleged that a policy of Corizon led to
his injury. Therefore, the complaint does not state a plausible claim against Corizon.
Because plaintiff is proceeding pro se, the Court will allow plaintiff to file an amended
complaint. Plaintiff shall have thirty days from the date of this Order to file an amended

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complaint. Plaintiff is warned that the filing of an amended complaint replaces the original
complaint, and claims that are not realleged 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 amended complaint within thirty days, the Court will dismiss this action without
prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $58
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.
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint within
thirty (30) days of the date of this Memorandum and Order. If plaintiff fails to file an amended
complaint, the Court will dismiss this action without prejudice.
Dated this 9th day of September, 2014.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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