Hamilton v. CMS/Correctional Medical Services et al

Filing 6

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. # 4 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $27.64 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 origin al proceeding. IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint, on a court-provided form, no later than thirty (30) days from the date of this Memorandum and Order. IT IS FURTHER ORDERED that the Court shall mail to plaintiff a copy of the Court's form Prisoner Civil Rights Complaint. Signed by Honorable Catherine D. Perry on 06/11/2012. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KIRBY HAMILTON,
Plaintiff,
v.
CORRECTIONAL MEDICAL
SERVICES, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 4:12CV853 CDP

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
341708), an inmate at Potosi Correctional Center, for leave to commence this action
without payment of the required filing fee [Doc. #4]. For the reasons stated below, the
Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and
will assess an initial partial filing fee of $27.64.

See 28 U.S.C. § 1915(b)(1).

Additionally, the Court will order plaintiff to submit an amended complaint.
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 or her 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. 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. 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. A review of plaintiff’s account indicates an average monthly deposit of
$138.20, and an average monthly balance of $0.17. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $27.64, which is 20 percent of plaintiff’s average monthly deposit.
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, 112 S. Ct. 1728,
1733 (1992). An action is malicious if it is undertaken for the purpose of harassing the

-2-

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, 127 S. Ct.
1955, 1974 (2007).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983, alleging violations of the
Eighth Amendment, against Correctional Medical Services (“CMS”), Unknown Singh
(Doctor), Unknown Perry (Doctor) and Unknown Lentz (Doctor). The complaint seeks
declaratory and injunctive relief.
Plaintiff alleges that he has been diagnosed with lupus and that he suffers from
a severe and painful rash on his back that has been there for a significant period of
time. Plaintiff claims that he has received various treatment for the rash but that
defendants have failed to refer him to an outside dermatologist despite placing notes
in the medical record stating that he has been seen by an outside doctor. Plaintiff
claims that his condition has continued to worsen and defendants have failed to provide
him with the proper medical treatment for his disease.

-3-

Discussion
The complaint is silent as to 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 Correctional Medical Services.
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). The complaint as it
is written fails to state a claim against the CMS employees because it does not allege
that a policy or custom of CMS is responsible for the alleged constitutional violations.
Monell v. Dep’t of Social Services, 436 U.S. 658, 690-91 (1978).
Additionally, because plaintiff has only stated generally that he believes he has
been unconstitutionally denied medical care, in violation of the Eighth Amendment,
but has not indicated which of the individual defendants he believes is responsible for
the alleged constitutional violations, his complaint fails to state a claim for relief.
“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 also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not

-4-

cognizable under § 1983 where plaintiff fails to allege defendant was personally
involved in or directly responsible for incidents that injured plaintiff); Boyd v. Knox,
47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in § 1983
suits); Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) (noting that general
responsibility for supervising operations of prison is insufficient to establish personal
involvement required to support liability under § 1983); Woods v. Goord, 1998 WL
740782, at *6 (S.D.N.Y. October 23, 1998) (receiving letters or complaints does not
render prison officials personally liable under § 1983). In the instant action, plaintiff
has not set forth any facts indicating that any of the named defendants were directly
involved in or personally responsible for the alleged violations of his constitutional
rights. As a result, the complaint fails to state a claim upon which relief can be granted.
Because of the serious nature of the allegations in the complaint, the Court will
not dismiss the case at this time. Instead, the Court will give plaintiff the opportunity
to file an amended complaint on a court-provided form. Plaintiff shall have 30 days
from the date of this Order to file an amended complaint. Plaintiff is warned that the
filing of an amended complaint replaces the original complaint, and claims that are not
realleged are deemed abandoned.

E.g., In re Wireless Telephone Federal Cost

Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). If plaintiff fails to file an

-5-

amended complaint within 30 days, the Court will dismiss this action without
prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #4] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of
$27.64 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.
IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint,
on a court-provided form, no later than thirty (30) days from the date of this
Memorandum and Order.
IT IS FURTHER ORDERED that the Court shall mail to plaintiff a copy of the
Court’s form Prisoner Civil Rights Complaint.
Dated this 11th day of June, 2012.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

-6-