Schaefer v. Lombardi et al

Filing 8

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 must pay an initial filing fee of $20.00 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. An order of dismissal will be filed separately. Signed by District Judge Carol E. Jackson on 10/21/2016. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
DANIEL M. SCHAEFER, JR.,
Plaintiff,
v.
GEORGE LOMBARDI, et al.,
Defendants.

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No. 2:16-CV-54 CEJ

MEMORANDUM AND ORDER
Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42
U.S.C. § 1983. Having reviewed plaintiff’s financial information, the Court assesses a partial
initial filing fee of $20, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, this action is dismissed pursuant to 28 U.S.C. § 1915(e).
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief, 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, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief is a

context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
The Complaint
Plaintiff brings this action against several supervisory officials at the Northeast
Correctional Center (“NECC”), where he is currently incarcerated. On June 21, 2016, plaintiff
was sexually assaulted by another prisoner. He was taken to a hospital and treated for multiple
injuries.

The hospital physician ordered “multiple procedures” to be implemented by the

medical unit at NECC.
When he returned to NECC, the medical team recorded no injuries, which plaintiff deems
to be negligence. Officials placed him in administrative segregation for thirty days. The
prisoner who assaulted him was also in administrative segregation in a nearby cell. Plaintiff
maintains that prison officials did not follow the procedures mandated by the Prison Rape
Elimination Act, 42 U.S.C. § 15601 et seq. (“PREA”).
Plaintiff alleges that he and his family notified the named defendants to grieve the issue
and request transfer to another facility. He says they failed to take corrective action.
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, 556 U.S. 662, 676 (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.”); Camberos v. Branstad, 73

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F.3d 174, 176 (8th Cir. 1995) (“a general responsibility for supervising the operations of a prison
is insufficient to establish the personal involvement required to support liability.”). There are no
allegations that the named defendants were personally involved in denying plaintiff’s rights.
Plaintiff has not alleged that they allowed the other inmate to assault him or denied him medical
care. As a result, the complaint fails to state a claim upon which relief can be granted.
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). Plaintiff’s allegation that the medical staff did
not correctly record his injuries does not rise to the level of deliberate indifference required to
state a claim under § 1983.
The complaint does not state whether defendants 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, in this case
the State of Missouri. Will v. Michigan Dep=t of State Police, 491 U.S. 58, 71 (1989). “[N]either
a State nor its officials acting in their official capacity are ‘persons’ under § 1983.” Id. As a

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result, the complaint fails to state a claim upon which relief can be granted for this reason as
well.
Finally, to the extent that plaintiff is attempting to sue defendants under the PREA, the
complaint is legally frivolous. The PREA “does not create a right of action that is privately
enforceable by an individual civil litigant.” E.g., LeMasters v. Fabian, 2009 WL 1405176, at *2
(D. Minn. May 18, 2009); Chinnici v. Edwards, 2008 WL 3851294, at *3 (D. Vt. Aug. 12, 2008)
(“The PREA is intended to address the problem of rape in prison, authorizes grant money, and
creates a commission to study the issue. 42 U.S.C. § 15601 et seq. The statute does not grant
prisoners any specific rights.”). For these reasons, this action must be dismissed under 28 U.S.C.
§ 1915(e).
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 must pay an initial filing fee of $20.00
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.1

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Prisoners must pay the full amount of the $350 filing fee. 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. The agency having custody of the prisoner
will deduct the payments and forward them to the Court each time the amount in the account
exceeds $10. 28 U.S.C. § 1915(b)(2).
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An order of dismissal will be filed separately.
Dated this 20th day of October, 2016.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

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