Dixon v. Corizon - Medical et al

Filing 5

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $15.16 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) th at the remittance is for an original proceeding. IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice. IT IS FURT HER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to defendant Dr. Unknown Fuentes in his individual capacity. Dr. Unknown Fuentes shall be served through the Court's waiver agreement with Corizon, I nc. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant Unknown Doctor Fuentes shall reply to plaintiff's claims within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Pr ocedure. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to defendants Unknown State Actors and Corizon Medical because, as to these defendants, the complaint is legally frivolous or fail s to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. An Order of Partial Dismissal will accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on 7/19/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAMONTE A. DIXON,

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Plaintiff,
v.
CORIZON, et al.,
Defendants.

No. 4:17-CV-1922 JMB

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.163320), an
inmate at St. Louis City Justice Center, for leave to commence this action without payment of the
required filing fee. For the reasons stated below, the Court finds that the plaintiff does not have
sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $15.16.
See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will partially
dismiss the complaint and will order the Clerk to issue process or cause process to be issued on
the non-frivolous portions of the complaint.
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 sixmonth 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 $75.83. Plaintiff has insufficient
funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$15.16, 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 Alacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319,
328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992). 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). A complaint fails to state a claim 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).
The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil
rights. Named as defendants are Corizon Medical; Dr. Unknown Fuentes, a Corizon Doctor; and
Unknown State Actors. Defendants are named in their official and individual capacities.
Plaintiff asserts that he has had an infection in his toe since December of 2016 that has
caused him serious pain and affected his walking. Plaintiff claims that he has not received

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proper treatment during his incarceration from Dr. Unknown Fuentes, who is employed by
Corizon Medical at the Justice Center, and plaintiff fears that he is in imminent danger of severe
injury. Plaintiff states that he has also been denied hospital treatment by Dr. Fuentes. He seeks
monetary damages and injunctive relief.
Discussion
Plaintiff has alleged enough facts to submit a claim against Dr. Fuentes, in his individual
capacity, for deliberate indifference to his serious medical needs in violation of the Eighth
Amendment with relation to his ongoing infection in his toe. The Court will issue process on
this deliberate indifference claim against Dr. Fuentes in his individual capacity only.
Plaintiff’s allegations against Dr. Fuentes in his official capacity, and against Corizon,
however, are subject to dismissal. To state a claim against an official in his or her official
capacity, plaintiff must allege that a policy or custom of his or her employer is responsible for
the alleged constitutional violation. Monell v. Dep=t 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 plaintiff=s constitutional rights. As a result,
the complaint fails to state a claim upon which relief can be granted.
Additionally, plaintiff has not made any allegations against the “Unknown State Actors”
in his complaint such that these actors can be identified with specificity or enough to show that
they were directly responsible for an alleged violation of plaintiff’s purported deprivation of
rights. See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (ALiability under § 1983
requires a causal link to, and direct responsibility for, the alleged deprivation of rights.@);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

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superior theory inapplicable in § 1983 suits).

As a result, the complaint fails to state a claim

upon which relief can be granted with respect to the Unknown State Actors.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc.
#2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $15.16
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 if plaintiff fails to pay the initial partial filing fee
within thirty (30) days of the date of this Order, then this case will be dismissed without
prejudice.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to
issue upon the complaint as to defendant Dr. Unknown Fuentes in his individual capacity. Dr.
Unknown Fuentes shall be served through the Court’s waiver agreement with Corizon, Inc.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant
Unknown Doctor Fuentes shall reply to plaintiff's claims within the time provided by the
applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the complaint as to defendants Unknown State Actors and Corizon Medical because,
as to these defendants, the complaint is legally frivolous or fails to state a claim upon which
relief can be granted, or both.

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IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard.
An Order of Partial Dismissal will accompany this Memorandum and Order.
Dated this 19th day of July, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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