Rothman v. Lombardi et al

Filing 19

MEMORANDUM AND ORDER :IT IS HEREBY ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to defendants Dr. Chastin and Sergeant Webb. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant s Chastin and Webb shall answer or otherwise respond to plaintiff's claims within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to defendants John Doe and Glen Babich. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard.. Signed by Honorable Carol E. Jackson on 7/25/11. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHARLES E. ROTHMAN,

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Plaintiff,
v.
UNKNOWN CHASTIN, et al.,
Defendants.

No. 4:11CV639 CEJ

MEMORANDUM AND ORDER
This matter is before the Court for review of plaintiff’s amended complaint [Doc.
# 10] pursuant to 28 U.S.C. § 1915(e).
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); Denton v. Hernandez, 504 U.S. 25, 31
(1992). 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). A complaint fails to state a claim if it does not plead “enough facts to state a

claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007).
The Amended Complaint
Plaintiff brings this action under 42 U.S.C. § 1983. Named as defendants are
Unknown Chastin, a Correctional Medical Services (CMS) Physician; Unknown Webb,
an Eastern Reception Diagnostics and Correctional Center (ERDCC) Sergeant; Glen
Babich, a CMS Physician; and John Doe, an ERDCC Correctional Officer.
Plaintiff alleges that he suffered from a serious heart condition, for which he
underwent surgery. Plaintiff claims that on December 19, 2008, he received a medical
lay-in which required that he be allowed to use a cane for walking, that he be housed
on the bottom floor, and that he be placed in a lower bunk. The lay-in, which is
attached as an exhibit to the complaint, further states: “NO BOAT OR FLOOR
ASSIGNMENTS.”
Plaintiff says that he showed the lay-in form to defendants Webb and Doe, whom
plaintiff claims had some degree of control over his cell assignment. Plaintiff had a
second floor cell assignment at the time. Plaintiff claims that Doe disregarded the lay-in
and told plaintiff to go to his cell on the second floor or he would give plaintiff a
conduct violation. Plaintiff says he complained to Webb but that Webb reiterated Doe’s
order.

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Plaintiff maintains that he was forced to continue living in his cell on the second
floor and that he was forced to sleep on the floor of the cell until May 23, 2008.
Plaintiff alleges that defendants Webb, Doe, and Chastin were aware of this condition.
Plaintiff avers that on May 23, 2008, he fell down the stairs while attempting to
get to the first floor. Plaintiff alleges that he suffered severe injuries as a result of the
fall, resulting in paralysis from the waist down.
Plaintiff’s only allegations pertaining to defendant Babich are that, at some point,
Babich “approved for plaintiff to be assigned to Housing Unit #4D-101-B, a ‘solitary
confinement and very restrictive confinement’; with ‘very limited movement.’” Am.
Cmplt. at 9.
Discussion
The complaint survives initial review as to defendants Chastin, Webb, and Doe.
As a result, the Court will order Chastin and Webb to respond to the complaint.
In general, fictitious parties may not be named as defendants in a civil action.
Phelps v. United States, 15 F.3d 735, 739 (8th Cir. 1994). An action may proceed
against a party whose name is unknown, however, if the complaint makes sufficiently
specific allegations to permit the identity of the party to be ascertained after reasonable
discovery. Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985). In this case, the Court
finds that plaintiff should be able to ascertain the identity of defendant Doe through
reasonable discovery.
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The allegations against Babich do not state a claim for relief under § 1983
because they do not rise to the level of a constitutional violation. As a result, the Court
will dismiss plaintiff’s claims against Babich under 28 U.S.C. § 1915(e).
Accordingly,
IT IS HEREBY ORDERED that the Clerk shall issue process or cause process
to issue upon the complaint as to defendants Dr. Chastin and Sergeant Webb.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants Chastin and Webb shall answer or otherwise respond to plaintiff’s claims
within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules
of Civil Procedure.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint as to defendants John Doe and Glen Babich.
IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner
Standard.
Dated this 25th day of July, 2011.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

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