Bailey v. McKinney et al

Filing 34

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that the Clerk shall issue process or cause process to issue upon the complaint against defendants William McKinney, Unknown Harrod, Lisa Spain, Kim Unknown, and Carla Unknown, pursuant to the waiver agreement the Court currently has in place with Correctional Medical Services/Corizon. Signed by Honorable Catherine D. Perry on 01/25/2012. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID EUGENE BAILEY,
Plaintiff,
v.
WILLIAM MCKINNEY, et al.,
Defendants.

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No. 4:11CV382 CDP

MEMORANDUM AND ORDER
This matter is before the Court upon remand of this matter from the Eighth
Circuit Court of Appeals.
Plaintiff, a former inmate in the Missouri Department of Corrections, brought
the instant action in February of 2011, pursuant to 42 U.S.C. § 1983, alleging
violations of his civil rights. Plaintiff sought to proceed in forma pauperis, thus,
pursuant to 28 U.S.C. § 1915, the Court assessed an initial partial filing fee in this
matter. After plaintiff failed to pay the initial partial filing fee in a timely manner, the
Court dismissed the instant action pursuant to Fed.R.Civ.P. 41(b) and denied several
post-dismissal motions filed by plaintiff. Plaintiff appealed the dismissal to the
Eighth Circuit Court of Appeals, and the Eighth Circuit reversed the dismissal and
remanded for further proceedings in this Court. During the interim time period,
plaintiff was released from incarceration.

Because plaintiff is proceeding in forma pauperis, the Court will now review
his complaint pursuant to 28 U.S.C. § 1915 and order the Clerk to issue process on
those portions of the complaint that survive review under § 1915.
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 “lacks an arguable basis in either law or
fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). 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).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify
the allegations in the complaint that are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009).

These include “legal

conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are]
supported by mere conclusory statements.” Id. at 1949. Second, the Court must
determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
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This is a “context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 1950. The plaintiff is required to
plead facts that show more than the “mere possibility of misconduct.” Id. The Court
must review the factual allegations in the complaint “to determine if they plausibly
suggest an entitlement to relief.”

Id. at 1951.

When faced with alternative

explanations for the alleged misconduct, the Court may exercise its judgment in
determining whether plaintiff’s conclusion is the most plausible or whether it is more
likely that no misconduct occurred. Id. at 1950, 51-52.
The Complaint
Plaintiff, a former inmate at Potosi Correctional Center (“PCC”), brings this
action for monetary damages pursuant to 42 U.S.C. § 1983 alleging violations of his
civil rights by several employees of Correctional Medical Services (“CMS”).
Plaintiff claims that doctor William McKinney was deliberately indifferent to
his serious medical needs in violation of the Eighth Amendment when he denied him
arthritis treatment for 15 months while he was incarcerated at PCC.
Plaintiff asserts that PCC dentist Unknown Harrod acted with deliberate
indifference to his serious medical needs when he refused to provide him dental care
for “exposed nerves in [his] gums” for two years or to “restore or clean” his teeth.

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Plaintiff states that the director of nursing at PCC, Lisa Spain, acted unlawfully
in retaliation for his use of the grievance system and failed to treat his arthritis pain
or allow the nurses she supervised to treat his medical condition. Plaintiff also asserts
that defendant Spain, along with defendant McKinney, falsified his medical records
to make it appear like he did not suffer from osteoarthritis.
Lastly, plaintiff asserts that two nurses at PCC, Kim Unknown and Carla
Unknown, “conspired to cover up an assault” on plaintiff done by correctional
officers at PCC. Plaintiff claims that the defendant nurses also acted with deliberate
indifference to his medical needs by failing to give him over the counter pain
medications for his arthritis when they knew he suffered from a painful medical
condition. Plaintiff also asserts that defendants Kim Unknown and Carla Unknown
also failed to provide him with proper medical treatment in retaliation for filing
grievances regarding his lack of medical care.
Plaintiff’s claims against defendants William McKinney, Unknown Harrod,
Lisa Spain, Kim Unknown and Carla Unknown survive review under 28 U.S.C. §
1915. As such, the Court will order the Clerk to issue process or cause process to be
issued on the complaint as to these defendants.
Accordingly,

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IT IS HEREBY ORDERED that the Clerk shall issue process or cause
process to issue upon the complaint against defendants William McKinney, Unknown
Harrod, Lisa Spain, Kim Unknown, and Carla Unknown, pursuant to the waiver
agreement the Court currently has in place with Correctional Medical
Services/Corizon.
Dated this 25th day of January, 2012.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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