Reed v. Corizon Health, Inc. et al
MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff John W. Reed motion is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $6.64 withi n thirty (30) days from 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 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). A separate Order of Dismissal shall accompany this Memorandum and Order. (Initial Partial Filing Fee due by 4/27/2015.) Signed by District Judge Stephen N. Limbaugh, Jr on 3/27/15. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JOHN W. REED,
CORIZON HEALTH, INC., et al.,
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of John W. Reed
(registration no. 31318) for leave to commence this action without payment of the
required filing fee. For the reasons stated below, the Court will assess plaintiff an
initial partial filing fee of $6.64. See 28 U.S.C. ' 1915(b)(1). Furthermore,
based upon a review of the complaint, the Court finds that this action should be
dismissed pursuant to 28 U.S.C. ' 1915(e)(2)(B).
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 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.
See 28 U.S.C. ' 1915(b)(1). 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.
See 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.
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
See 28 U.S.C. ' 1915(a)(1),(2).
A review of plaintiff's account
statement indicates an average monthly deposit of $33.22, and an average monthly
account balance of $2.72. Plaintiff has insufficient funds to pay the entire filing
fee. Accordingly, the Court will assess an initial partial filing fee of $6.64, 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). 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).
action fails to state a claim upon which relief can be granted if it does not plead
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic
Corp. v. Twombly, 550 U.S. 544,570 (2007).
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.
1950-51. 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.
Moreover, in reviewing a pro se complaint under ' 1915(e)(2)(B), the Court
must give the complaint the benefit of a liberal construction.
404 U.S. 519, 520 (1972).
Haines v. Kerner,
The Court must also weigh all factual allegations in
favor of the plaintiff, unless the facts alleged are clearly baseless.
Hernandez, 504 U.S. 25, 32 (1992).
Plaintiff, an inmate at the St. Louis City Justice Center ("SLCJC"), seeks
monetary relief in this 42 U.S.C. ' 1983 action against defendants Corizon Health,
Inc., and Nurse Arrip. Plaintiff alleges, “Nurse gave me the wrong psychiatric
medication which caused severe stomach pain and keep food on my stomach. I
am nauseated several times a week.” In addition, plaintiff claims that “nurse will
try to give [him] medication that belongs to other inmates.”
Plaintiff brings this action against the Nurse Arrip in his or her 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). Official-capacity suits are tantamount to suits
brought directly against the public entity of which the official is an agent.
Kentucky v. Graham, 473 U.S. 159, 166 (1985). To state a claim against a public
entity or a government official in his or her official capacity, a plaintiff must allege
that a policy or custom of the public entity was responsible for the alleged
Brandon v. Holt, 469 U.S. 464, 473 (1985); Monell v.
Department of Social Services, 436 U.S. 658, 690-91 (1978). Because plaintiff
does not claim that a public entity=s policy or custom was responsible for the
alleged constitutional violations, the complaint fails to state a claim or cause of
action under ' 1983 against Nurse Arrip.
The complaint also fails to state a claim and is legally frivolous as to
defendant Corizon Health, Inc., because plaintiff has failed to assert any
allegations against this corporate defendant.
See Sanders v. Sears, Roebuck &
Co., 984 F.2d 972, 975-76 (8th Cir. 1993) (to state a claim against private
corporation acting under color of state law, plaintiff must allege existence of
policy, custom, or official action that caused actionable injury; corporation will be
held liable only for its own unconstitutional policies); Martin v. Sargent, 780 F.2d
1334, 1338 (8th Cir. 1985) (claim not 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).
As additional grounds for dismissing this action, the Court finds that
plaintiff's allegations do not rise to the level of constitutional violations and are
mere conclusory statements that will not be given an assumption of truth.
Iqbal, 129 S. Ct. at 1950-51.
To state a claim for unconstitutional medical
mistreatment, a plaintiff must plead facts sufficient to indicate deliberate
indifference to serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 106
(1976); Camberos v. Branstad, 73 F.3d 174, 175 (8th Cir. 1995).
deliberate indifference, a plaintiff must allege that he suffered objectively serious
medical needs and that defendants actually knew of but disregarded those needs.
Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997).
Furthermore, to state a
claim of deliberate indifference, Athe 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).
Medical malpractice alone is not
actionable under the Eighth Amendment. Smith v. Clarke, 458 F.3d 720, 724 (8th
Plaintiff's claims fail to state an Eighth Amendment deliberate
indifference or medical-mistreatment claim.
For these reasons, the Court will dismiss this action as legally frivolous and
for failure to state a claim or cause of action, pursuant to '1915(e)(2)(B).
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $6.64 within thirty (30) days from 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 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).
A separate Order of Dismissal shall accompany this Memorandum and
Dated this 27th day of March, 2015.
UNITED STATE S DISTRICT JUDGE
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