Mahone v. Corizon Health, Inc. et al

Filing 5

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis (ECF # 2 ) is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $2.00 within thirty 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 this action is DISMISSED pursuant to 28 USC 1915(3)(2)(B). An order of dismissal will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 6/17/15. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

MICHAEL A. MAHONE,
Plaintiff,
v.

CORIZON HEALTH, INC., et al.,
Defendants.

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No. 2:15CV37 SPM

MEMORANDUM AND ORDER

Plaintiff, a prisoner, seeks leave to proceed in form.a pauperis in this civil action under 42
U.S.C. § 1983. Having reviewed plaintiffs financial information, the Court assesses a partial
initial filing fee of $2.00, which is twenty percent of his average monthly deposit. See 28 U .S.C.
§ 1915(b).
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in form.a
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief under § 1983, a complaint must plead more than "legal conclusions"
and "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a "mere possibility of misconduct."
The Complaint

Plaintiff alleges that in September 2012 he was bitten by a brown recluse spider, which
caused a large wound to appear on his leg. He says that the wound became infected. He claims
that defendants Dr. Cabrera, Dr. Stamps, and Dr. Wardell treated his condition, although

inadequately. Wardell tested his wound and told him that he had venous skin ulcers as a result of
poor venous circulation, and he told him that his wound was not related to a spider bite.
Another doctor told plaintiff that his wound was serious and that his leg might have to
have been amputated if it got worse. He was sent to an outside facility, where he was seen by
defendant Dr. Strong, a wound care specialist, and Dr. Phillips, a vascular surgeon. He says that
both doctors performed operations on his leg several times; Dr. Strong did three separate skin
graft operations, and Dr. Phillips performed two surgeries on his veins to improve circulation.
He claims that the skin grafts did not take. Plaintiff says that in the last three years, his wound
has decreased in size but that he is still in pain and cannot walk without a device.
Plaintiff alleges that defendant Unknown Aarauberg, a Nurse Practitioner, provided him
with "care" for some time. He claims that she stopped seeing him after he filed a grievance
against her. However, he has not alleged that she refused to see him or that he has not been
provided with care from other providers. He says he has been seen by defendant Cabrera.
Defendant claims that defendant Tammy Anderson denied his grievances. He claims that
defendant Debra Bater, a nurse, incorrectly updated his medical chart.

And he says that

defendant Dr. Babich, Corizon's Medical Director in Jefferson City, never personally saw him.
Plaintiff alleges that all of the defendants in this case lied about his condition to cover up
one another's mistakes.
Discussion

Plaintiff filed a similar suit on February 6, 2014 against the Missouri Department of
Corrections, Corizon Medical Services, Inc., Dr. Stamps, Dr. Archer, Dr. Wardell (incorrectly
named "Wudell"), Lisa Spain, and Dana Jost. Mahone v. Missouri Dep 't of Corrections, No.
4:14CV224 JAR (E.D. Mo.). Plaintiff alleged several facts that he has realleged in this case. He

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claimed that he was bitten by a spider in September 2012, which resulted in a painful wound.
And he said that Drs. Wardell and Stamps provided him with inadequate care. He also claimed
that Dr. Unknown at the Northeast Correctional Center did not give him adequate treatment.
This would be Dr. Cabrera. The Court dismissed that action under 28 U.S.C. § 1915(e) because
it failed to state a claim upon which relief can be granted.
Many of the allegations in this complaint are duplicative of the allegations plaintiff
brought in the 2014 case. The allegations that are repeated in this case are barred by res judicata.

E.g., Cooper v. Delo, 997 F.2d 376, 377 (8th Cir. 1993) (§ 1915(e) dismissal has res judicata
effect on future IFP petitions).

These claims are plaintiffs allegations against defendants

Cabrera, Stamps, and Wardell, insofar as they occurred before February 2014, and they must be
dismissed
To state a claim for medical mistreatment, plaintiff must plead facts sufficient to indicate
a deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976);

Camberos v. Branstad, 73 F .3d 174, 175 (8th Cir. 1995). Allegations of mere negligence in
giving or failing to supply medical treatment will not suffice. Estelle, 429 U.S. at 106. In order
to show deliberate indifference, plaintiff must allege that he suffered objectively serious medical
needs and that defendants actually knew of but deliberately disregarded those needs. Dulany v.

Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). In order to state a claim against 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).
Plaintiffs allegations against defendants do not rise to the level of deliberate
indifference. Plaintiff alleges that all of the doctors in this case treated his wound. He only
claims that their treatment efforts were ineffective. This sounds in negligence. Furthermore, he

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has not alleged that a policy of Corizon caused his injuries. As a result, his claims for medical
mistreatment fail to state a claim upon which relief can be granted.
Similarly, plaintiffs claim that defendant Baker was inaccurate in her medical charting
rises only to the level of negligence.
Section 1983 imposes liability on government actors acting under color of state law. 42
U.S.C. § 1983.

"Private actors may incur section 1983 liability only if they are willing

participants in a joint action with public servants acting under color of state law." Johnson v.

Outboard Marine Corp., 172 F.3d 531, 536 (8th Cir.1999). To state a claim against a private
actor under § 1983, a plaintiff "must establish, at the very least, an agreement or meeting of the
minds between the private and state actors, and a corresponding violation of the plaintiffs' rights
under the Constitution or laws of the United States." Id. Defendants Strong and Phillips are not
state actors. Instead, they are outside doctors who are either hospital employees or in private
practice. Therefore, the complaint also fails to state a claim against them for this reason.
"Only persons who cause or participate in the [constitutional] violations are responsible.
Ruling against a prisoner on an administrative complaint does not cause or contribute to the
violation." George v. Smith, 507 F. 3d 605, 609 (7th Cir. 2007) (citations omitted).
consequence, plaintiffs claims against defendant Anderson are frivolous.

In

Plaintiffs claims

against defendants Griffon and Babich are frivolous as well, because plaintiff has not alleged that
either of them were directly responsible for any alleged harm.
Plaintiffs allegation that defendant Aarauberg retaliated against him by not seeing him
after he filed a grievance is conclusory and does not state a plausible claim for relief. He has not
alleged that she refused to see him or that he was denied care as a result of not seeing her.

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To properly plead a claim for civil conspiracy under § 1983, a plaintiff must include
factual allegations showing a "meeting of the minds" concerning unconstitutional conduct;
although an express agreement between the purported conspirators need not be alleged, there
must be something more than the summary allegation of a conspiracy before such a claim can
withstand a motion to dismiss. See Mershon v. Beasely, 994 F.2d 449, 451 (8th Cir. 1993).
Plaintiffs allegations that each of the defendants lied about his inadequate treatment are wholly
conclusory and do not state a claim for relief.
For each of these reasons, this action must be dismissed under 28 U.S.C. § 1915(e).
Accordingly,

IT IS HEREBY ORDERED that plaintiffs 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 $2.00
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 this action is DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B).

An Order of Dismissal will accompany this Memorandum and Order.

Dated this 17th day of June, 2015.

.ROSS
ED STATES DISTRICT JUDGE

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