Wilson v. Lombardi et al

Filing 5

MEMORANDUM AND ORDER. (See Full 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 the Clerk shall issue process or cause process to be issued on the complaint as to all named defendants in both their individual and official capacities. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $51.62 within thirty (30) days from the date of this Order. IT IS FURTHER ORDERED that, pursuant to the Court's differentiated case management system, this case is assigned to Track 5B (standard prisoner actions). Signed by District Judge Catherine D. Perry on 8/20/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
PATRICK WILSON,

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Plaintiff,
v.
GEORGE A. LOMBARDI,
Defendant.

No. 2:15-CV-45-CDP

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Patrick Wilson (registration
no. 1252022) for leave to commence this action without payment of the required
filing fee [Doc. #2]. The Court will grant the motion and assess an initial partial
filing fee of $51.62. In addition, the Court will instruct the Clerk to issue process
on the complaint as to all defendants.
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 $258.10, and an average
monthly account balance of $202.88. Plaintiff has insufficient funds to pay the
entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$51.62 which is 20 percent of plaintiff's average monthly deposit.
42 U.S.C. ' 1997e(g)(2)
Pursuant to 42 U.S.C. ' 1997e(g)(2), the Court may require any defendant to
reply to a complaint brought by a prisoner pursuant to 42 U.S.C. ' 1983 or any other
federal law if it finds that the plaintiff has a reasonable opportunity to prevail on the
merits. Moreover, 28 U.S.C. ' 1915A requires the Court to identify any cognizable
claims that would survive dismissal.
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The Complaint
Plaintiff, an inmate at the Moberly Correctional Center, seeks monetary relief
in this 42 U.S.C. ' 1983 action against defendants George A. Lombardi (Director,
Missouri Department of Corrections), Corizon LLC, Geeneen A. Wilhite (Corizon
Director of Nursing), Bonnie Boley (Corizon Health Services Administrator), Paul
Jones (Corizon Physician), J. Cofield (Corizon Regional Director, Constituent
Services), and G. Babich (Corizon Regional Medical Director).

Plaintiff is suing

defendants in both their individual and official capacities.
Plaintiff alleges that he suffers from bilateral neuropathy in his lower
extremities, his right ankle has orthopedic implants, and he is in severe pain as a
result of both conditions. He claims that the medications he has been prescribed
“are reasonably safe to take for only short periods of time” and will cause damage to
his kidneys and liver if “taken more than seven (7) to ten (10) days repeatedly.” In
addition, plaintiff alleges that the medication he has been prescribed is not effective
for chronic pain, which is what he claims to have. Plaintiff further alleges that a Dr.
Johnson informed him on June 5, 2015, that “he would have to have the hardware
removed from his right foot and Dc walking boots.” Plaintiff claims that the
“medical personnel have stop[ped] treating [his] pain altogether with any
medication that would serve to relieve his suffering from chronic pain.” He states
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that they only prescribe “regular Tylenol which is cosmetic.” Plaintiff alleges that
defendants have “repeatedly refused to treat [him] by removing the hardware, or
giving him medications that would properly help to alleviate his chronic pain.” He
further alleges that defendants’ deliberate indifference in failing to provide him
adequate and necessary treatment constitutes a violation of his Eighth Amendment
rights. In addition, plaintiff asserts pendent state claims for negligence. Liberally
construing the complaint, the Court finds that plaintiff's allegations are sufficient to
proceed at this time, and therefore, the Court will order defendants to reply to the
complaint.
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to be issued on the complaint as to all named defendants in both their
individual and official capacities.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $51.62 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
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number; and (4) that the remittance is for an original proceeding.
IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial
filing fee within thirty (30) days, without good cause shown, the Court will dismiss
this action without prejudice and without further notice.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. ' 1997e(g)(2),
defendants shall reply to the complaint within the time provided by the applicable
provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that, pursuant to the Court's differentiated
case management system, this case is assigned to Track 5B (standard prisoner
actions).
Dated this 20th day of August, 2015.

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UNITED STATES DISTRICT JUDGE

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