Cooks v. Burnig et al

Filing 6

MEMORANDUM AND ORDER re: 3 ORDERED that plaintiff's motion to proceed in formapauperis [Doc. #3] is GRANTED. FURTHER ORDERED that plaintiff shall pay an initial filing fee of $1.23 within thirty (30) days of the date of this Order. FURT HER ORDERED that, as to defendant Unknown Burnig, the Clerk shall not issue process or cause process to issue upon the complaint, because the allegations are legally frivolous and fail to state a claim upon which relief may begranted. FURTHER ORDERED that defendants Unknown Long and the Mental Health Committee Adjustment Board and Central Transfer Agency are DISMISSED without prejudice, because they are not properly joined in this action under Rule20(a)(2) of the Federal Rules of Civil Procedure . FURTHER ORDERED that the Clerk of Court shall docket this case as Gary Allan Cooks v. Unknown Burnig, Unknown Long, and Mental Health Committee Adjustment Board and Central Transfer Agency. A separate Order of Dismissal will accompany this Memorandum and Order.( Initial Partial Filing Fee due by 2/9/2013.). Signed by District Judge Jean C. Hamilton on 1/9/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GARY ALLAN COOKS,
Plaintiff,
v.
UNKNOWN BURNIG, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 4:12-CV-2094-DDN

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Gary Allan Cooks
(registration no. 172469) for leave to commence this action without payment of the
required filing fee [Doc. #3].
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
$6.13, and an average monthly balance of $.68. Plaintiff has insufficient funds to pay
the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$1.23, 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 may 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 against a defendant who is immune from
such relief. An action is frivolous if “it lacks an arguable basis in either law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious when it is
undertaken for the purpose of harassing litigants 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). An action fails to state a claim upon which relief

-2-

can be granted 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 Complaint
Plaintiff, an inmate at the Eastern Reception Diagnostic and Correctional Center,
seeks unspecified monetary relief in this action brought pursuant to 42 U.S.C. § 1983.
Named as defendants are Unknown Burnig (an eye doctor), Unknown Long (a dentist),
and the “Mental Health Committee Adjustment Board and Central Transfer Agency.”
In paragraph one of the complaint, plaintiff asserts a claim against defendant Dr.
Burnig. Plaintiff summarily alleges, “Dr. Burnig refuses to provide plaintiff his needed
prescribe[d] eye lenses.” Plaintiff further states that he “cannot do much litigation
without [his] reading lenses.” In paragraph two, plaintiff asserts his claim against
defendant Dr. Long, and states, “Miss Long refuses to pull out plaintiff’s painful tooth
cavity.” In paragraph three of the complaint, plaintiff asserts a claim against defendant
Mental Health Committee Adjustment Board and Central Transfer Agency. Plaintiff
alleges that this defendant refuses to transfer him to a regular prison.

-3-

Discussion
1.

Permissive Joinder

At issue is whether the defendants are properly joined in the instant lawsuit. See
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (district court should question
joinder of defendants and claims in prisoner cases). The Court holds that they are not.
Rule 18(a) of the Federal Rules of Civil Procedure states, “A party asserting a
claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may
join, either as independent or as alternate claims, as many claims, legal, equitable, or
maritime, as the party has against an opposing party.”
Rule 20(a)(2) of the Federal Rules of Civil Procedure allows for joinder of
defendants if “any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or series
of transactions or occurrences; and . . . any question of law or fact common to all
defendants will arise in the action.”
The allegations in paragraphs one, two, and three of the complaint do not pertain
to the same defendant(s) or arise out of the same series of transactions and occurrences.
As a result, defendants are not properly joined under Rule 20(a)(2).
Because plaintiff’s allegations first address his claim against Dr. Burnig, and
because defendants are not properly joined under Rule 20(a)(2), the Court will dismiss

-4-

this action without prejudice as to defendants Dr. Long and the Mental Health
Committee Adjustment Board and Central Transfer Agency. If plaintiff wishes to bring
claims against these defendants, he must file a separate complaint against each party,
in compliance with the Federal Rules of Civil Procedure.
2.

28 U.S.C. § 1915(e)(2)(B)

Plaintiff claims that Dr. Burnig refuses to provide him “needed prescribed eye
lenses” and that he “cannot do much litigation without [his] reading lenses.” The
Court notes that plaintiff is bringing this action against Dr. Burnig in his official
capacity. See Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir.
1995)(where a complaint is silent about defendant’s capacity, Court must interpret the
complaint as including official-capacity claims); 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; however,“neither a State nor its officials acting in their official
capacity are ‘persons’ under § 1983.”

See Will v. Michigan Dep’t of State Police,

491 U.S. 58, 71 (1989). As such, the complaint is legally frivolous and fails to state
a claim upon which relief can be granted as to Dr. Burnig.
As additional grounds for dismissing this action against Dr. Burnig, the Court
notes that mere negligence does not rise to the level of a constitutional violation. See

-5-

Daniels v. Williams, 474 U.S. 327, 328 (1986); Estelle v. Gamble, 429 U.S. 97, 106
(1976) (mere negligence is not cognizable as Eighth Amendment violation); Morton v.
Becker, 793 F.2d 185, 188 n.3 (8th Cir. 1986)(Fourteenth Amendment Due Process
Clause is not implicated by state official’s negligent act causing unintended loss of or
injury to life, liberty, or property). Moreover, to state a claim for unconstitutional
medical mistreatment, a plaintiff must plead facts sufficient to indicate deliberate
indifference to serious medical needs. Estelle, 429 U.S. at 106; Camberos v. Branstad,
73 F.3d 174, 175 (8th Cir. 1995). To show deliberate indifference, a plaintiff must
allege that he suffered objectively serious medical needs and that the defendant actually
knew of but disregarded those needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th
Cir. 1997). Medical malpractice alone is not actionable under the Eighth Amendment.
Smith v. Clarke, 458 F.3d 720, 724 (8th Cir. 2006). To state a claim of deliberate
indifference, “the prisoner must show more than negligence, more even than gross
negligence, and mere disagreement with treatment decisions does not rise to the level
of a constitutional violation.” Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.
1995). Plaintiff’s allegations relative to Dr. Burnig do not rise to the level of deliberate
indifference, and therefore, they fail to state an Eighth Amendment claim.
Accordingly,

-6-

IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #3] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of
$1.23 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, as to defendant Unknown Burnig, the Clerk
shall not issue process or cause process to issue upon the complaint, because the
allegations are legally frivolous and fail to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that defendants Unknown Long and the Mental
Health Committee Adjustment Board and Central Transfer Agency are DISMISSED
without prejudice, because they are not properly joined in this action under Rule
20(a)(2) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the Clerk of Court shall docket this case as
Gary Allan Cooks v. Unknown Burnig, Unknown Long, and Mental Health Committee
Adjustment Board and Central Transfer Agency.

-7-

A separate Order of Dismissal will accompany this Memorandum and Order.
Dated this 9th Day of January 2013.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

-8-