McCray v. Corizon Health Care
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis is GRANTED. [ECF No. 3 ] IT IS FURTHER ORDERED that, within twenty-one (21) days of the date of this Memorandum and Order, plaintiff must pay an initia l filing fee of $1.00. 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) the statement that the remittance is for an original proceeding. IT IS FURTHER ORDERED that, within twenty-one (21) days of the date of this Memorandum and Order, plaintiff shall submit an amended complaint in accordance with the instructions set forth herein. IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff a blank Prisoner Civil Rights Complaint form. Plaintiff may request additional forms as needed. If plaintiff fails to timely comply with this Memorandum and Order, the Court will dismiss this action without prejudice. Signed by Magistrate Judge David D. Noce on 2/8/18. (JAB)(Remark: Order and Prisoner Civil Rights Complaint form mailed to petitioner on 2/8/18)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
REGINALD PATRICK MCCRAY,
CORIZON HEALTH CARE,
No. 4:17-CV-2558 DDN
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Reginald Patrick McCray, a
prisoner at St. Louis City Justice Center, for leave to commence this action without prepayment
of the filing fee. Having reviewed plaintiff’s financial information, the Court will assess an
initial partial filing fee of $1.00. In addition, the Court will allow plaintiff the opportunity to
submit an amended 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
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
$10.00, until the filing fee is fully paid. Id.
In this case, plaintiff filed a letter with the Court stating that he has asked for six months
for a copy of his inmate account statement, and his case worker has refused to provide it. In his
motion, plaintiff states he has $254.00 in his prison account, however he is no longer employed
with the prison’s work program and cannot expect future deposits. The Court also notes that
plaintiff has submitted bills from St. Louis University Hospital in which he owes more than
$5,500.00 for medical care. Therefore, the Court will require plaintiff to pay an initial partial
filing fee of $1.00, an amount that is reasonable based upon the information the Court has about
plaintiff’s finances. 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”).
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. A
pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause
of action will not do,” nor will a complaint suffice if it tenders bare assertions devoid of “further
factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)).
When conducting initial review pursuant to § 1915(e)(2), the Court must accept as true
the allegations in the complaint, and must give the complaint the benefit of a liberal construction.
Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the tenet that a court must accept the
allegations as true does not apply to legal conclusions, Iqbal, 556 U.S. at 678, and affording a
pro se complaint the benefit of a liberal construction does not mean that procedural rules in
ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed
without counsel. See McNeil v. U.S., 508 U.S. 106, 113 (1993).
Plaintiff brings this action to redress violations of his civil rights, and names Corizon
Health Care (“Corizon”) as defendant. Plaintiff alleges that he slipped and fell on the ladder of
his bunk bed at the St. Louis City Justice Center (“Justice Center”), and twisted his knee badly.
Dr. Fuentes, who practices at the Justice Center, ordered x-rays, which revealed the injury, and
sent plaintiff to St. Louis University Hospital. The doctors at St. Louis University Hospital told
plaintiff he would need surgery, and sent him to a bone specialist.
On April 25, 2017, plaintiff saw a bone specialist, Dr. Kyme, who confirmed that
plaintiff needed surgery. Dr. Kyme scheduled plaintiff to see a physical therapist first, whom he
saw on June 6, 2017. The physical therapist said she could not treat plaintiff until he received
knee surgery because his knee had “set popped out of socket for so long that the surgery was a
must before she could continue to help me.” Dr. Kyme and the physical therapist sent plaintiff
back to the Justice Center with a note stating plaintiff needed an MRI prior to surgery.
Dr. Fuentes scheduled plaintiff for an MRI on July 3, 2017. For unknown reasons,
however, plaintiff did not go to the MRI on his scheduled date. Dr. Fuentes has told plaintiff that
there is no more she can do for plaintiff because “her boss won’t let her send [him] to surgery.”
Plaintiff complains that his knee is very painful, and he has to walk with the assistance of a
For relief, plaintiff seeks payment for his surgery and any unpaid hospital bills. Plaintiff
also seeks $2,000,000.00 to compensate him for future surgeries and lost work.
Plaintiff has named only Corizon as a defendant in this action; however, Corizon is not an
entity that is subject to a suit such as the one at bar. Corizon can be held liable in a lawsuit only
for its unconstitutional policies or practices. It cannot be held liable for the actions of its
employees under a theory that employers are responsible for the actions of their employees. See
Burke v. N.D. Dept. of Corr. & Rehab., 294 F.3d 1043, 1044 (8th Cir. 2002). In other words,
Corizon is liable here only if it had a “policy, custom, or official action that inflicted an
actionable injury.” Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006). A “policy” for
purposes of § 1983 is “an official policy, a deliberate choice of a guiding principle or procedure
made by an official with authority.” Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999).
“Custom” means a “persistent, widespread pattern of unconstitutional conduct of which officials
have notice and subsequently react with deliberate indifference or tacit authorization.” Johnson
v. Outboard Marine Corp., 172 F.3d 531, 536 (8th Cir. 1999). Plaintiff has failed to allege that
Corizon had a policy, custom, or official action that inflicted an actionable injury, and therefore
his complaint fails to state a claim against Corizon.
Plaintiff has not alleged any claims under § 1983 against the individual doctors involved,
and therefore the Court cannot evaluate the complaint as to any individuals involved in his care
Because plaintiff is proceeding pro se, the Court will allow him to file an amended
complaint. Plaintiff is warned that the filing of an amended complaint replaces the original
complaint, and so it must include all claims plaintiff wishes to bring. E.g., In re Wireless Tele.
Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005). Plaintiff must submit the
amended complaint on a court-provided form, and the amended complaint must comply with
Rules 8 and 10 of the Federal Rules of Civil Procedure.
In the “Caption” section of the amended complaint, plaintiff must state the first and last
name, to the extent he knows it, of each defendant he wishes to sue. Plaintiff should also
indicate whether he intends to sue each defendant in his or her individual capacity, official
capacity, or both.1
In the “Statement of Claim” section, in separate, numbered paragraphs plaintiff should set
forth the specific factual allegations supporting his claim or claims against each defendant, as
well as the constitutional right or rights that defendant violated. Alternatively, plaintiff may
choose a single defendant and set forth as many claims as he has against that defendant. See Fed.
R. Civ. P. 18(a). If plaintiff is suing more than one defendant, he should proceed in the same
manner with each one, separately writing each individual defendant’s name and, under that
name, in numbered paragraphs, the allegations specific to that particular defendant and the
right(s) that defendant violated. Plaintiff’s failure to make specific and actionable allegations
against any defendant will result in that defendant’s dismissal from this case.
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis is
GRANTED. [ECF No. 3]
IT IS FURTHER ORDERED that, within twenty-one (21) days of the date of this
Memorandum and Order, plaintiff must pay an initial filing fee of $1.00. 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) the statement that the
The failure to sue a defendant in his or her individual capacity may result in the dismissal of
remittance is for an original proceeding.
IT IS FURTHER ORDERED that, within twenty-one (21) days of the date of this
Memorandum and Order, plaintiff shall submit an amended complaint in accordance with the
instructions set forth herein.
IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff a blank
Prisoner Civil Rights Complaint form. Plaintiff may request additional forms as needed.
If plaintiff fails to timely comply with this Memorandum and Order, the Court will
dismiss this action without prejudice.
/s/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on February 8, 2018.
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