Milner v. Corizon Medical Corp. et al

Filing 5

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis (Docket No. 2 ) is GRANTED. IT IS FURTHER ORDERED that within thirty (30) days from the date of this order, plaintiff must pay an initial filing fee o f $3.83. 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 of Court shall provide to plaintiff, along with a copy of this Order, a blank copy of this Court's Prisoner Civil Rights Complaint form. IT IS FURTHER ORDERED that plaintiff sh all file an amended complaint, in accordance with the instructions set forth above, no later than thirty (30) days from the date of this Order. IT IS FURTHER ORDERED that if plaintiff fails to timely comply with this Order, the Court will dismiss t his action without prejudice. IT IS FURTHER ORDERED that upon the filing of the amended complaint, it will be subject to review under 28 U.S.C. § 1915. (cc: Order and Prisioner Civil Rigts Complaint form to plt) Signed by District Judge Ronnie L. White on 10/03/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LOWELL MILNER,
Plaintiff,

CORIZON MEDICAL CORP., et al. ,
Defendants.

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No . 4:16CV1445 RLW

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Lowell Milner' s motion for leave to
commence this action without prepayment of the required filing fee. (Docket No. 2). For the
reasons stated below, the Court will grant the motion and assess plaintiff an initial partial filing
fee of $3.83.

See 28 U.S .C. § 191 S(b)(l).

The Court will also require plaintiff to file an

amended complaint.

28 U.S.C. § 191S(b)(l)
A prisoner bringing a civil action in forma pauperis is required to pay the full amount of
the filing fee. 28 U.S.C. § 1915(b)(l). 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. Id.
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. §
191 S(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.
A review of plaintiffs account indicates an average monthly balance of $19 .17. Plaintiff
has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial
partial filing fee of $3.83 , which is 20 percent of plaintiffs average monthly balance.
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. 28 U.S.C. § 1915(e)(2)(B). 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, 46163 (E.D.N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987). An action fails to state a claim upon
which relief 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 brings this action against Corizon Medical Corporation and the Missouri
Department of Corrections, and three individuals plaintiff identifies as Dr. Diabstere, Dr.
Winklemeyer, and Dr. Haq. In his complaint, plaintiff states that he has severe chronic health
conditions, and that Corizon and the Missouri Department of Corrections do not want to provide
treatment.

After listing several of his health conditions and referring to the defendants

collectively, he states in conclusory fashion that they have denied him medical care.
Discussion

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While it is apparent that plaintiff is claiming that he was denied medical care, he has not
explained how each named defendant was personally involved in the deprivation of his
constitutional rights . Instead, he refers to the defendants collectively, and states in conclusory
fashion that they denied him health care. As written, the complaint fails to state a claim upon
which relief can be granted.
To properly state a claim for relief, a complaint must plead more than legal conclusions.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). A complaint is not sufficient if it
contains only bare assertions with no factual enhancement. Id. Because "[l]iability under § 1983
requires a causal link to, and direct responsibility for, the alleged deprivation of rights," the
complaint must set forth specific facts demonstrating how each individual defendant contributed
to the alleged constitutional violation. Id. at 676.
Because plaintiffs claims are serious in nature, the Court will provide plaintiff an
opportunity to amend his complaint. In so doing, plaintiff must follow the Court's instructions
as set forth below, or this action may be dismissed without prejudice.
Plaintiff is required to submit his amended complaint on a court-provided form, and it
must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Rule 8(a) requires
that a complaint contain a "short and plain" statement of the claim showing that the pleader is
entitled to relief, and a demand for the relief sought. Rule 1O(b) requires that a party must state
its claims or defenses in separately numbered paragraphs, each limited as far as practicable to a
single set of circumstances.
Plaintiff must also clearly identify each of the defendants against whom he is alleging a
claim, and he must clearly identify the name and title of each defendant, to the extent he knows
it. He must also articulate, for each defendant, the factual circumstances surrounding his or her

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alleged wrongful conduct. Plaintiffs failure to make specific and actionable allegations against
any defendant will result in that defendant's dismissal from this case.

Plaintiff should also

specify whether he is suing each defendant in his or her individual capacity, official capacity, or
both. See Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978).
Plaintiff shall have thirty (30) days from the date of this Order to file his amended
complaint. Plaintiff is warned that the filing of the amended complaint completely replaces the
original. Claims that are not re-alleged 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 his amended complaint within thirty (30) days, the Court will dismiss this action without
prejudice.
The Court will review the amended complaint pursuant to 28 U.S.C. § 1915 for
frivolousness, maliciousness and/or failure to state a claim. A claim and/or defendant must
survive § 1915 review in order for plaintiff to proceed on those claims in this lawsuit.
Accordingly,

IT IS HEREBY ORDERED that plaintiffs motion to proceed m forma paupens
(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that within thirty (30) days from the date of this order,
plaintiff must pay an initial filing fee of $3 .83. 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 of Court shall provide to plaintiff, along
with a copy of this Order, a blank copy of this Court's Prisoner Civil Rights Complaint form.

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IT IS FURTHER ORDERED that plaintiff shall file an amended complaint, in
accordance with the instructions set forth above, no later than thirty (30) days from the date

of this Order.

IT IS FURTHER ORDERED that if plaintiff fails to timely comply with this Order, the
Court will dismiss this action without prejudice.

IT IS FURTHER ORDERED that upon the filing of the amended complaint, it will be
subject to review under 28 U.S.C. § 1915 .
Dated this

3rd

day of October, 2016.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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