Wilson v. Ferguson

Filing 8

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $37.50 within thirty (30) days of the date of this Orde r. Plaintiff is instructed to make his remittance payable to AClerk, 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 pro ceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because the complaint is legally frivolous and [fails to state a claim upon which relief can be granted. See 28 U.S.C. ' 1915(e)( 2)(B). IT IS FURTHER ORDERED that all remaining pending motions are DENIED without prejudice as moot.A separate Order of Dismissal shall accompany this Memorandum and Order.7] 2 6 ( Initial Partial Filing Fee due by 1/10/2016.) Signed by District Judge Jean C. Hamilton on 12/10/15. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES WILSON,
Plaintiff,
v.
BRETT FERGUSON,
Defendant.

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No. 4:15-CV-1635-JCH

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for leave to commence
this action without payment of the required filing fee [Doc. #2]. The motion will be
granted, and plaintiff will be assessed an initial partial filing fee of $37.50. See 28
U.S.C. ' 1915(b)(1). Furthermore, based upon a review of the amended complaint
[Doc. #5], the Court finds that this action should be dismissed pursuant to 28 U.S.C.
' 1915(e)(2)(B).
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 Ait lacks an arguable basis in
either law or in fact.@ Neitzke v. Williams, 490 U.S. 319, 328 (1989). An 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).
In reviewing a pro se complaint under ' 1915(e)(2)(B), the Court must give
the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519,
520 (1972). The Court must also weigh all factual allegations in favor of the
plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504
U.S. 25, 32-33 (1992).
The Amended Complaint
Plaintiff, an inmate at the Northeast Correctional Center, seeks monetary
relief against Brett Ferguson (a Nurse Practitioner at the Eastern Reception
Diagnostic Center) in this action brought pursuant to 42 U.S.C. ' 1983. Plaintiff
alleges that Ferguson was an employee of Corizon Health Services (“Corizon”), and
he is suing him in both his official and individual capacities.
Plaintiff alleges that, on or about December 28, 2013, he was suffering from
“severe headaches and sever eye pain in his left eye.” Plaintiff states that he pushed
the “panic button,” and a nurse arrived and took him to the medical unit. Plaintiff
states that he was sweating profusely and “was then immediately taken to the
medical unit by medical cart and into the medical emergency room.” Plaintiff
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states that he was told he had high blood pressure, and he complains that he was not
treated for a brain aneurism. He was given “Coumadin” and was sent back to his
housing unit. Thereafter, on January 1, 2014, plaintiff saw an eye doctor, who
diagnosed a brain aneurism. On January 7, 2014, plaintiff saw another medical
doctor, who also diagnosed a brain aneurism. On January 8, 2014, plaintiff was
taken to the Columbia Medical Center, where he was seen by a neurologist.
Plaintiff underwent brain surgery, and he complains that he still suffers from severe
headaches. Somewhat confusingly, plaintiff further alleges that he was “taken to
Mineral Point Clinic on or about the 8th of January 2014, for a CAT scan.” Plaintiff
states that he “was given said results by defendant Ferguson which stated in part no
brain aneurism.” Plaintiff claims that Ferguson “misdiagnosed” him and that he
was “denied his rights under the Constitution of the United States and under the
Constitution of the State of Missouri as a direct and proximate result of the
recklessness, negligence, and medical neglect and delay of defendant Ferguson.”
Plaintiff states that he has sustained permanent eye damage.
Discussion
Having carefully reviewed the complaint, the Court concludes that dismissal
is warranted under 28 U.S.C. ' 1915(e)(2)(B). Plaintiff brings this action against
defendant Ferguson, a Corizon employee, in his official and individual capacities.
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To state a claim against a Corizon employee in his official capacity, a plaintiff must
allege that a policy or custom of his employer is responsible for the alleged
constitutional violation. See Monell v. Dep=t of Social Services, 436 U.S. 658,
690-91 (1978). The instant amended complaint does not contain any allegations
that a policy or custom of Corizon was responsible for the alleged violations of
plaintiff=s constitutional rights. As a result, the amended complaint is legally
frivolous and fails to state a claim upon which relief can be granted as to defendant
Ferguson in his official capacity.
Regarding plaintiff’s individual-capacity claims, the Court finds that the
amended complaint fails to state a claim or cause of action under § 1983. As
previously noted, plaintiff alleges that defendant Ferguson misdiagnosed him and
gave him CAT scan results stating “in part no brain aneurism.” Mere negligence,
however, does not rise to the level of a constitutional violation. See 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). To state a claim for unconstitutional medical
treatment, a plaintiff must plead facts sufficient to indicate deliberate indifference to
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serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976); 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). 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 Cir. 2006). Moreover, prison officials do
not violate the Eighth Amendment when, in the exercise of their professional
judgment, they refuse to implement a prisoner=s requested treatment. Kayser v.
Caspari, 16 F.3d 280, 281 (8th Cir. 1994). A mere difference of opinion between
plaintiff and his treating physician about what treatment is appropriate does not give
rise to a colorable claim under ' 1983. Warren v. Fanning, 950 F.2d 1370,1373
(8th Cir. 1990). Plaintiff=s allegations relative to defendant Ferguson simply do not
rise to the level of deliberate indifference. Because plaintiff=s allegations fail to
state a ' 1983 claim against Ferguson in his individual capacity, they also will be
dismissed as legally frivolous.
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Last, to the extent that plaintiff is attempting to assert pendent state claims for
medical negligence, the claims will be dismissed without prejudice. See 28 U.S.C.
' 1367(c)(3); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (if federal
claims are dismissed before trial, remaining state claims should also be dismissed);
Hassett v. Lemay Bank & Trust Co., 851 F.2d 1127, 1130 (8th Cir. 1988) (where
federal claims have been dismissed, district courts may decline jurisdiction over
pendent state claims as a "matter of discretion").
For the above-stated reasons, the Court will dismiss this action under 28
U.S.C. ' 1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of
$37.50 within thirty (30) days of the date of this Order. Plaintiff is instructed to
make his remittance payable to AClerk, 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 complaint is legally frivolous and
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fails to state a claim upon which relief can be granted.

See 28 U.S.C. '

1915(e)(2)(B).
IT IS FURTHER ORDERED that all remaining pending motions are
DENIED without prejudice as moot.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 10th day of December, 2015.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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