Brodigan v. Roberts et al

Filing 9

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $27.31 within thirty (30) days of the date of th is 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 a n 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 plaintiffs motion to amend his complaint by interlineation to add his prayer for relief [Doc. # 8 ] is GRANTED. IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel [Doc. # 5 ] is DENIED AT THIS TIME. IT IS FURTHER ORDERED that the Clerk of Court shall add the following individuals as defendants in this action as they were named in the body of plaintiffs complaint: Nurse Jessica Engle; Nurse Practitioner Unknown Owens; Nurse Amy Wallen; and Dr. Unknown Zakaroff. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to defendants Doctor Ben E. Swink; Nurse Tracy Sutton; Nurse Amy Wallen; Nurse Practitioner Unknown Owens; Doctor Unknown Zakaroff; and Nurse Jessica Engle. These de fendants shall be served in their individual capacities through the service agreement the Court maintains with Corizon, Inc. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to defendant Corizo n, Inc. This defendant shall also be served through the service agreement the Court maintains with Corizon, Inc. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants Nurse Jessica Engle; Nurse Practitioner Unknown Owens; Nurse Amy Wallen; Dr. Unknown Zakaroff and Corizon, Inc. shall reply to plaintiffs 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 is sue process or cause process to issue upon the complaint as to defendants the Missouri Department of Corrections, Doctor Jonathan Roberts, and Doctor Theodore Willmore because, as to these defendants, the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that this case is assigned to Track SB: Prisoner Standard. An Order of Partial Dismissal will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 8/3/18. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID JAMES BRODIGAN,
Plaintiff,
v.
DR. JONATHAN M. ROBERTS, et al.,
Defendants.

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No. 4:18-CV-273 JAR

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff David James Brodigan
(registration no. 517776), an inmate at Eastern, Reception, Diagnostic and Correctional Center
("ERDCC"), 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 $27.31. See 28 U.S.C.
§ 1915(b)(l). 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 nonfrivolous portions of the complaint.

28 u.s.c. § 1915(b)(l)
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 insuffi.Cient 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
plaintiffs account indicates an average monthly deposit of $136.58. Accordingly, the Court will
assess an initial partial filing fee of $27.31.
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 actio.n 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 "lacks 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
"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, an inmate at ERDCC, brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights. He· names the following individuals and entities as defendants in
this action: Dr. Jonathan M. Roberts (Surgeon at St. Mary's Hospital in Jefferson City, MO); Dr.
Theodore Willmore (Emergency Room physician at St. Mary's Hospital); Dr. Ben Swink

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(Corizon, Inc.); Tracy Sutton (Nurse Practitioner, Corizon, Inc.); Missouri Department of
Corrections; and Corizon, Inc.
Plaintiff states that he suffered from severe pain from an inguinal hernia approximately
2011 through 2016. Plaintiff asserts that during this period he filed a number of medical service
requests with Corizon seeking treatment for this serious medical need and the surgical
intervention that was required to correct the medical condition. Plaintiff claims that he was told
on several occasions that Corizon was not going to pay for the emergent needed surgery because
the cost of the procedure was too high.
Plaintiff asserts that "after approximately four and a half years of suffering in severe pain,
the Corizon defendants transported me to St. Mary's Hospital in Jefferson City, MO, whereupon
defendant Jonathan Roberts performed an emergency surgery upon me for the right inguinal
hernia..."
Plaintiff alleges that after the surgery, sometime around June of 2016, he continued to
suffer severe pain in his testicular area. He asserts that he was brought to Vista imaging in
Festus, Missouri for an ultrasound of his pelvis, and the results showed a "significantly decreased
blood flow relative to the left testicle, as well as torsion of the right testicle." Plaintiff alleges that
"in the Corizon Medical Accountability Records System ("MARS"), Dr. Saad Nassar, as well as
Technical Dalana Mauk, opined that the 'Findings are concerning for incomplete testicular
torsion,' the patient should go to the emergency department and or be seen by a urologist
emergently. "' Plaintiff states that ''the technician further advised the transporting officer that
plaintiff 'could lose a testicle' if not transported to the emergency department right now."
Plaintiff asserts that he was taken to the ER, however, the ER doctor, defendant Wilmore,
stated without examining plaintiff or his ultrasound scans, that what he was experiencing was
normal, and he should be taken back to the prison.

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Plaintiff states that from July 8, 2016 through October 15, 2016, he was in excruciating
pain and several doctors and nurses, refused him pain treatment for his purported torsion,· except
for Tylenol. The doctors included defendant Swink, defendant Roberts (seen by Tel-Med), as
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well as Nurse Jessica Engle.
Plaintiff states that when he asked to once again be sent to a specialist outside of the
prison, defendant Swink told him that "he had already been sent out to Vista Imaging and the
Emergency Room and Corizon is not going to keep paying for all these outside visits." Plaintiff
alleges defendant Swink then denied him further treatment and all forms of pain control.
In August of 2016, plaintiff alleges that he was seen by Tel-Med by Dr. Roberts,
whereupon he told Dr. Roberts he was suffering from excruciating pain of the right testicle and
surrounding area, and that the right testicle was twisted sideways and pulled up. Plaintiff states
that defendant Roberts "refused to provide him with treatment and denied him all forms of pain
control." Plaintiff states that he felt defeated and helpless, but he was in so much pain he kept
placing medical requests. ·
Plaintiff states that on October 20, 2016, he saw Nurse Jessica Engle. Plaintiff claims he
once again told Nurse Engle that he had severe pain in his testicle and he needed to see a doctor
on an emergent basis. Plaintiff specifically asked to see Dr. Swink. Plaintiff alleges he also told
Nurse Engle that the· Tylenol he was being given was not effective to control his pain. Nurse
Engle allegedly told plaintiff that he could not see the doctor and there was no need to provide
him with anything other than Tylenol.
Plaintiff claims that by the end of October 2016, his right testicle had shrunk to the size
of a pecan. Plaintiff claims that the membrane that "made up the entire mass of what the right
testicle used to be felt like a ball of raw nerve and was excruciatingly painful to touch." He
claims that when he next placed a medical request, it fell to Nurse Shannon Oaks who

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recognized the emergent nature of the situation and made plaintiff an appointment with Dr.
Roberts. Rather than see plaintiff again, however, Dr. Roberts canceled plaintiff's appointment
and referred plaintiff to an outside urologist in November of2016.
Plaintiff states that the unnamed urologist told him his right testicle was "dead and
atrophied" and it was "pointless to have surgical intervention now because of the delay in
emergently needed surgery in June 2016." The doctor told plaintiff that the pain in the testicle
was due to the nerves dying and he prescribed plaintiff a nerve medication called Neurontin for
the pain.
Plaintiff returned to ERDCC and on November 22, 2016, he had a follow-up appointment
with Nurse Oaks. Nurse Oaks told plaintiff that she would order the Neurontin to be filled. On
November 29, 2016, plaintiff submitted another medical request indicating he had not received
the Neurontin. Again, on December 2, 2016, plaintiff told Nurse Engle he had not received the
Neurontin. He told Nurse Engle the nerve pain was worsening, and she told him he would be
referred to the doctor.
On December 6, 2016, plaintiff was seen by Nurse Practitioner Sutton regarding his
worsening nerve pain in his pelvic region. Plaintiff told Nurse Sutton about the appointment
with the urologist and the prescription he had been given for Neurontin but still had not received.
Nurse Sutton told plaintiff that he had been given Tylenol and that would be all the pain
medication he would be receiving.
On December 17, 2016, plaintiff submitted another request for medical treatment. And on
December 27, 2016, when he did not receive any additional medical treatment, plaintiff
requested mental health treatment. Plaintiff claimed that as a result of almost constant pain over
several years, he was suffering from depression, anxiety and post-traumatic stress. Plaintiff
submitted additional medical requests on December 31, 2016 and January 26, 201 7.

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Plaintiff was finally seen in regards to his medical requests by Nurse Richard Humble on
February 13, 2017. Nurse Humble referred plaintiff back to Nurse Sutton for an appointment on
February 28, 2017. On that date, plaintiff again told Nurse Sutton about his extreme pain in his
pelvic region, as well as his constant nerve pain. Plaintiff claims that Nurse Sutton told him,
"You are not a young man anymore. That is probably why you are taking so long to heal."
Plaintiff claims Nurse Sutton denied him all forms of medical treatment at the appointment.
Plaintiff asserts that this denial of treatment went on for seven additional months 1 until he
met with Nurse Angela Adams on December 19, 2017. On that date, when plaintiff gave Nurse
Adams his medical history and complained of the pain in his pelvic region, Nurse Adams
prescribed plaintiff the nerve pain reliever Amitriptyline. Plaintiff claims that Nurse Adams told
him that ''there was no reason for [him] to suffer like this for more than a year."
Plaintiff claims that Corizon and its employees have an unconstitutional policy of
denying medical care predicated on the cost of treatment or the costs of procedures. Plaintiff
claims that this is done to the detriment of their patients' health.
Plaintiff seeks monetary damages and injunctive relief.
Discussion

After review of plaintiff's allegations in his complaint, the Court will issue process or
cause process to issue on plaintiff's Eighth Amendment claims for deliberate indifference to his
serious medical needs against the following individual defendants in their individual capacities:

1

Plaintiff claims he was denied treatment by defendant Sutton in May 2017, as well as Nurse
Practitioner Owens in June 2017. Plaintiff states that he was denied treatment by Nurse Amy
Wallen and Dr. Zakaroff in September 2017. Plaintiff has n9t named Nurse Jessica Engle; N.P.
Owens; Nurse Amy Wallen; or Dr. Zakaroff as defendants in the caption of the complaint.
However, he has made allegations against these individuals in the bbdy of the complaint as to
denial of medical care. For that reason, the Court will include these individuals as defendants in
this action.
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Doctor Ben E. Swink; Nurse Tracy Sutton; Nurse Amy Wallen; Nurse Practitioner Unknown
Owens; Doctor Unknown Zakaroff; and Nurse Jessica Engle.
The Court will also issue process on plaintiffs claim against Corizon, Inc. for his
assertion that Corizon and its employees have an unconstitutional policy of denying medical care
predicated on the cost of treatment or the costs of procedures. Plaintiff claims that this is done to
the detriment of their patients' health. 2
The complaint, however, fails to state a claim against ,the Missouri Department of
Corrections ("MDOC"). E.g., Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp.,
948 F.2d 1084, 1086 (8th Cir. 1991) (agency exercising state power is not "person" subject to §
1983 suit). As a result, the complaint shall be dismissed as to MDOC pursuant to 28 U.S.C. §
1915(e)(2)(B).
And plaintiff cannot state a cause of action under 42 U.S.C. § 1983 against Dr. Jonathan
Roberts or Dr. 'Theodore Willmore, as plaintiff does not allege, nor is it apparent, that these
individuals were acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988) (to
state a claim under 42 U.S.C. § 1983, a plaintiff must establish: (1) the violation of a right
secured by the Constitution or laws of the United States, and (2) that the alleged deprivation of
that right was committed by a person acting under color of state law). These doctors appear to be

2

Although the Court will allow this unlawful policy claim to pass §-1915 review, the Court is
mindful that not all allegations in a complaint are entitled to an assumption of truth. See Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). For example, a complaint cannot survive§ 1915 .
review with just threadbare recitals of the elements of a cause of action or unsupported,
conclusory statements. Id. at 1949. However, at this juncture, the Court has made a contextspecific review of plaintiffs allegations in this case, drawing upon its judicial experience and
plaintiffs factual allegations. Id at 1950. Plaintiff states in his complaint that he was told on
several occasions between 2011 and 2016, in relation to his medical service requests, that he was
not allowed to have surgical intervention for his inguinal hernia because the cost of the
procedure was too high. Plaintiff also claims in his complaint that Dr. Swink told him that
"Corizon is not going to keep paying for all of these outside visits."

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employed by St. Mary's Hospital in Jefferson City and thus cannot be held liable as state actors
under§ 1983.
Last, the Court will deny plaintiffs request for appointment of counsel at this time as the
Court does not believe that the factual and legal issues involved in this action are complex.
Further, it appears that plaintiff is able to represent his own

int~rests

at this time. See, e.g.,

Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986); Nelson v. Redfield Lithograph
Printing, 728 F.2d 1003, 1005 (8th Cir. 1984).

Accordingly,
IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc.
#2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $27 .31
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 plaintiffs motion to amend his complaint by
interlineation to add his prayer for relief [Doc. #8] is-GRANTED.
IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel [Doc.
#5] is DENIED AT THIS TIME.
IT IS FURTHER ORDERED that the Clerk of Ce>urt shall add the following
individuals as defendants in this action as they were named in the body of plaintiffs complaint:

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Nurse Jessica Engle; Nurse Practitioner Unknown Owens; Nurse Amy Wallen; and Dr.
Unknown Zak:aroff.

IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to
issue upon the complaint as to defendants Doctor Ben E. Swink; Nurse Tracy Sutton; Nurse Amy
Wallen; Nurse Practitioner Unknown Owens; Doctor Unknown Zak:aroff; and Nurse Jessica
Engle. These defendants shall be served in their individual capacities through the service
agreement the Court maintains with Corizon, Inc.

IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to
issue upon the complaint as to defendant ·Corizon, Inc. This defendant shall also be served
through the service agreement the Court maintains with Corizon, Inc.

IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants
Nurse Jessica Engle; Nurse Practitioner Unknown Owens; Nurse Amy Wallen; Dr. Unknown
Zak:aroff and Corizon, Inc. shall reply to plaintiffs 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 the Missouri Department of Corrections, Doctor
Jonathan Roberts, and Doctor Theodore Willmore because, as to these defendants, the complaint
is legally frivolous or fails to state a claim upon which relief can be granted, or both.

IT IS FURTHER ORDERED that this case is assigned to Track SB: Prisoner Standard.
An Order of Partial Dismissal will accompany this Memorandum and Order.
Dated this

3rd

day of August, 2018.

ROSS
STATES DISTRICT JUDGE

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