Gassel v. Jones, MD et al

Filing 3

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $1.00 within thirty (30) days of the date of this Ord er. 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 ori ginal proceeding. IT IS FURTHER ORDERED that the Clerk is directed to mail to plaintiff a copy of the Court's prisoner civil rights complaint form. IT IS FURTHER ORDERED that plaintiff must file an amended complaint on the Court's form with in thirty (30) days of the date of this Order. IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court will dismiss this action without prejudice. If the case is dismissed for noncompliance with this Order, the dismissal will not count as a "strike" under 28 U.S.C. § 1915(g). Signed by District Judge John A. Ross on 10/26/2016. (CLO) (Copy of Order and Complaint Form Mailed)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHRISTOPHER GASSEL,
Plaintiff,
v.
PAUL JONES, MD, et al.,
Defendants.

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No. 4:16CV1663 JAR

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs motion for leave to commence this
action without payment of the required filing fee.

The motion will be granted, and

plaintiff will be assessed an initial partial filing fee of $1.00. See 28 U.S.C. §1915. 1
Furthermore, based upon a review of the complaint, the Court finds that because plaintiff
is proceeding pro se, the Court will allow plaintiff to file an amended complaint on the
Court's form. Plaintiff has thirty (30) days from the date of this Order to file an amended
complaint in accordance with the specific instructions set forth here.
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Pursuant to 28 U.S.C. § 1915(b)(l), 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. 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 not submitted a prison account statement.
As a result, the Court will require plaintiff to pay an initial partial filing fee of $1.00. See
Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the
Court with a certified copy of his prison account statement, the Court should assess an amount
"that is reasonable, based on whatever information the court has about the prisoner's finances.").
If plaintiff is unable to pay the initial partial filing fee, he must submit a copy of his prison
account statement in support of his claim.

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 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).
In reviewing a prose 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 Complaint

Plaintiff, an inmate at the Western Missouri Correctional Center ("WMCC") in
Cameron, Missouri, seeks monetary relief in this action for the violation of his
constitutional rights under 42 U.S.C. § 1983. It appears that plaintiffs allegations arise
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out of his incarceration at the Moberly Correctional Center in 2014. Named as
defendants are Paul Jones, M.D. (Corizon Medical Services, Medical Director) and
Corizon Medical Services ("Corizon").

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Plaintiff filed a similar lawsuit against defendants Paul Jones, MD and Corizon Medical
Services earlier in 2016 in this Court. See Gassel v. Jones, 2:16CV4 DDN (E.D.Mo. 2016).
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Plaintiff alleges in a conclusory fashion that Dr. Jones violated his Eighth
Amendment rights to be provided adequate medical care. However, plaintiff has failed to
allege exactly when and where defendant Jones failed to provide him proper care.
Plaintiff has only alleged in a general fashion that defendant failed to treat him when his
injuries were "so obvious that even a lay person would easily recognize the necessity for
a doctor's attention." Plaintiff has also complained, in a conclusory fashion, that Dr.
Jones left him with physical disfigurement. However, he has failed to state exactly how
Dr. Jones left him in such a state, and whether the disfigurement was a result of Dr.
Jones' failure to treat plaintiff or as a result of an unexplained or undiagnosed medical
illness.
Discussion

Having carefully reviewed the complaint, the Court concludes that dismissal is
warranted under 28 U.S.C. § 1915(e)(2)(B). First, as stated above, plaintiff has failed to
make personal allegations against Dr. Jones in his complaint.
"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 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).
In the instant action, plaintiff has not set forth any facts indicating that Dr. Jones
injured him on a specific date by doing a specific act, or by omitting to engage in a
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specific act. As a result, the complaint fails to state a claim upon which relief can be
granted.
Additionally, as currently pied, the complaint also fails to state a claim against
defendants due to the way in which plaintiff has alleged his claims against defendants in
their official capacity.
Plaintiff brings this action against Dr. Paul Jones 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).
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. Dept of Social Services, 436 U.S. 658, 690-91 (1978). The
instant complaint does not contain any allegations that a policy or custom of Corizon was
responsible for the alleged violations of plaintiffs constitutional rights. As a result, the
complaint is legally frivolous and fails to state a claim upon which relief can be granted
as to both defendants Paul Jones and Corizon.

Because plaintiff is proceeding prose, the Court will allow plaintiff to amend
his complaint rather than dismiss the complaint at this time. Plaintiff is warned that
the filing of an amended complaint replaces the original complaint and all
previously-filed pleadings, so plaintiff must include each and every one of the claims
he wishes to pursue in the amended complaint. See, e.g., In re Wireless Telephone
Federal Cost Recovery Fees Litigation, 396 F .3d 922, 928 (8th Cir. 2005). Any claims
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from the original complaint, supplements, and/or pleadings that are not included in
the amended complaint will be deemed abandoned and will not be considered. Id.
The allegations in the complaint must show how each and every defendant is
directly responsible for the alleged harms. If plaintiff wishes to sue defendants in
their individual capacities, plaintiff must specifically say so in the amended
complaint. If plaintiff fails to sue defendants in their individual capacities, this action may
be subject to dismissal.
All of plaintiffs claims should be clearly set forth in the "Statement of Claim." If
plaintiff fails to file an amended complaint on the Court's form within thirty days and in
compliance with the Court's instructions, the Court will dismiss this action without
prejudice and without further notice.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis
[Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $1.00
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 the Clerk is directed to mail to plaintiff a copy
of the Court's prisoner civil rights complaint form.

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IT IS FURTHER ORDERED that plaintiff must file an amended complaint on
the Court's form within thirty (30) days of the date of this Order.

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

If the case is dismissed for non-

compliance with this Order, the dismissal will not count as a "strike" under 28 U.S.C.

§ 1915(g).
Dated this 26th day of October, 2016.

.ROSS
D STATES DISTRICT JUDGE

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