Stewart v. Cabrera et al

Filing 8

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Clerk is directed to serve process on defendants Tomas Cabrera, Corizon, Inc., and Ernest Jackson. Defendants Cabrera and Corizon should be served in accordance with the Courts agreement with Corizon.IT IS FURTHER ORDERED that defendants Tammy Anderson, Jackson Institutional Dental Services, Robert Jarrett, William Jones, and James Hurley are DISMISSED without prejudice.An Order of Dismissal will be filed separately. Signed by District Judge Henry Edward Autrey on 4/5/17. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
WAYNE STEWART,
Plaintiff,
v.
TOMAS CABRERA, et al.,
Defendants.

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No. 2:17CV9 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on review of plaintiff’s complaint under 28 U.S.C.
§ 1915(e). Upon review, the Court finds that some of the defendants must be dismissed for
failure to state a claim upon which relief can be granted.
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 under 42 U.S.C. § 1983 for denial of medical care. Before he
was incarcerated, plaintiff was shot in the face by a deputy sheriff for Jasper County. The wound
primarily affected his jaw, and he underwent facial reconstructive surgery.

The surgeon

mounted an “ephemeral steel plate” in his left mandible. Subsequently, another surgeon told
plaintiff he would need a bone graft to replace the plate because of a one-inch gap in the
mandible, which was caused by missing bone from the gunshot wound.
Plaintiff was convicted in 2011, and he was subsequently incarcerated at the Crossroads
Correctional Center. While there, he filed numerous requests for medical care because the nonunion of the steel plate with his mandible was causing severe pain. The medical staff there
refused to treat him. And his caseworker told him that the Missouri Department of Corrections
and Corizon, Inc. (“Corizon”), were not required to treat any injuries he suffered preincarceration.
Plaintiff was transferred to the Northeastern Correctional Center in March 13, 2013.
Upon his arrival, he requested surgery for the non-union and his pain. Defendant Dr. Cabrera
refused to provide him with any treatment.

As a result, his left mandible re-fractured in

September 2014.
Dr. Cabrera then ordered an X-ray of his left mandible. He did not, however, prescribe
pain medication. The X-ray showed that the plate holding his mandible together had become
disconnected. It was reiterated to plaintiff that Corizon was not responsible for treating preincarceration injuries and that the needed surgery was too expensive.

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Plaintiff saw a specialist in February 2015, who said plaintiff needed an emergency
surgery to place a bone graft in his jaw. No surgery was performed. Plaintiff was sent to see
Defendant Ernest Jackson, a dentist for defendant Jackson Institutional Dental Services, about a
month later. Jackson ordered more X-rays, regardless of the fact that more than five X-rays had
already been taken, including a “panorex full 3-D x-ray procedure in January 2015 . . .” Jackson
had plaintiff’s previous X-rays before the appointment.
In August 2015, Corizon approved the recommended surgery, during which, a skin graft
was placed inside his mouth. After the surgery, plaintiff suffered severe nerve damage, loss of
bone and muscle, and infections in his jaw.
Plaintiff informed Dr. Cabrera and Jackson that the skin graft was not healing, and as a
result, he was suffering severe pain and could not eat or sleep. Cabrera gave him an antibiotic
that did not cure the infection.
Plaintiff wrote letters to Defendants Tammy Anderson, William Jones, and James Hurley,
which went unanswered.
Discussion
The Court finds that plaintiff has alleged facts showing that defendants Dr. Cabrera and
Jackson were deliberately indifferent to his serious medical needs. Additionally, plaintiff has
sufficiently alleged facts showing that a policy or custom of Corizon led to his injuries. As a
result, these defendants must answer the allegations.
Plaintiff has failed to show that defendant Jackson Institutional Dental Services had a
policy or custom that violated his rights. See Sanders v. Sears Roebuck & Co., 984 F.2d 972, 9576 (8th Cir. 1993). Therefore, this defendant is dismissed.

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“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
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.”). Plaintiff’s
claim that he wrote letters to the remaining defendants fails to show their personal involvement.
As a result, defendants Anderson, Jones, Jarrett, and Hurley are dismissed.
Accordingly,
IT IS HEREBY ORDERED that the Clerk is directed to serve process on defendants
Tomas Cabrera, Corizon, Inc., and Ernest Jackson. Defendants Cabrera and Corizon should be
served in accordance with the Court’s agreement with Corizon.
IT IS FURTHER ORDERED that defendants Tammy Anderson, Jackson Institutional
Dental Services, Robert Jarrett, William Jones, and James Hurley are DISMISSED without
prejudice.
An Order of Dismissal will be filed separately.
Dated this 4th day of April, 2017

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HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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