Johnson v. Alias et al

Filing 10

REPORT AND RECOMMENDATION that 6 MOTION for preliminary injunction, 2 MOTION for order for leave to proceed IFP filed by Rayfield Johnson be denied, 1 Complaint filed by Rayfield Johnson be dismissed. Objections to R&R due by 1/12/2009. Signed by Magistrate Judge William A. Knox on 12/22/2008. (skb)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

RAYF IELD JOHNSON, Plaintiff, v. ALKARAKUDY G. ALIAS, M.D., et al., Defendants.

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No. 08-4258-CV-C-NKL

REPORT, RECOMMENDATION AND ORDER Plaintiff, a patient confined at Fulton State Hospital, a Missouri institution, brought this case under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its corresponding jur isdictional statute, 28 U.S.C. § 1343. 1 Named as defendants are M. Devonne French, Janet Kettle, Kavita Pendurthi and Drs. Alias, Adusumilli and Chernoff. Plaintiff claims he was given the drug Seroquel in February 2008, which has caused him to have diabetes and pancreas disorder. Plaintiff has requested leave to proceed without paying the filing fee, pursuant to 28 U. S. C. § 1915. Under section 1915, the court may waive filing fees and costs if it finds a plaintiff is indigent and if the claim should not be dismissed on certain other enumerated gr ounds. If appropriate, the court may impose a partial filing fee under L.R. 83.7. In re Williamson, 786 F.2d 1336 (8th Cir. 1986). Plaintiff's affidavit indicates that he is indigent and currently unable to pay the full filing fee. Nevertheless, when a plaintiff seeks leave to proceed without prepayment of the filing fee, the court must dismiss the case if it finds the claim to be frivolous or malicious, if it fails to state a claim for which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2). The term "frivolous,"

This case was referred to the undersigned United States Magistrate Judge for pr ocessing in accord with the Magistrate Act, 28 U.S.C. § 636, and L.R. 72.1.

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as used in the statute, does not necessarily imply the plaintiff' s claims are unimportant, but may mean only that the federal court lacks the authority to address them. Case law indicates that where a plaintiff seeks leave to proceed under section 1915, a claim should be dismissed if it "lacks an arguable basis either in law or fact" or is based on an " indisputably meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989). The statute has been interpreted to give the court "the unusual power to pierce the veil of the complaint' s factual allegations and dismiss those claims whose factual contentions are clearly baseless. " Id. at 327. Baseless factual contentions are those that are "fanciful," "fantastic" or " wholly incredible." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (citation omitted). To succeed on his Eighth Amendment medical claims, plaintiff must allege and prove, by a preponderance of the evidence, a "deliberate indifference to a serious medical need." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Prison officials may not be held liable under 42 U. S. C. § 1983 for mere negligence in the treatment of an inmate. Id. The standard for " deliber ate indifference" includes an objective and a subjective component. Beyerbach v. Sear s, 49 F.3d 1324, 1326 (8th Cir. 1995) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Thus, to prevail on his claims, plaintiff must show 1) that the medical deprivation was objectively sufficiently serious; and 2) that prison officials subjectively knew about the depr ivation and refused to remedy it. A serious medical need is defined as "one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that even a layper son would easily recognize the necessity for a doctor's attention." Camberos v. Br anstad, 73 F.3d 174, 176 (8th Cir. 1995) (quoting Johnson v. Busby, 953 F.2d 349, 351 (8th Cir. 1991)); see also Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997) (citing Camber os v. Branstad, 73 F.3d at 176). A mere difference of opinion between plaintiff and his treating physician about what tr eatment is appropriate does not give rise to a colorable claim under section 1983. Warren v. F anning, 950 F.2d 1370, 1373 (8th Cir. 1991); Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir . 1990); Courtney v. Adams, 528 F.2d 1056 (8th Cir. 1976). Likewise, disagreement with a diagnosis or course of medical treatment is insufficient to state a claim. Davis v. Hall, 992 F . 2d 151, 153 (8th Cir. 1993). Plaintiff's claims are based solely on his personal opinion. 2

His personal opinion about an issue of medical causation is not sufficient to allow this claim to pr oceed. Nothing in the Eighth Amendment prevents doctors from exercising independent medical judgment. Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996). On November 13, 2008, plaintiff filed motions for preliminary injunctive relief r egar ding his care. For the reasons set forth above, plaintiff's motions for preliminary injunctive relief should be denied. Although the federal courts have broad power to grant or deny equitable relief in a civil r ights action, Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971), a "large degree of discretion is vested in the trial court" in determining whether an injunction should issue. American Home Investment Co. v. Bedel, 525 F.2d 1022, 1023 (8th Cir. 1975), cited with approval in Rittmiller v. Blex Oil, Inc., 624 F.2d 857 (8th Cir. 1980). See also Cole v. Benson, 760 F.2d 226 (8th Cir. 1985). In Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109 (8th Cir . 1981), the court delineated the factors to be considered in ruling a motion for preliminary injunctive relief. Whether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the plaintiff; (2) the state of balance between such harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that plaintiff will succeed on the merits; and (4) the public interest. Id. at 113. Further, "[t]he dramatic and drastic power of injunctive force may be unleashed only against conditions generating a presently-existing actual threat; it may not be used simply to eliminate a possibility of a remote future injury, or a future invasion of rights." Rogers v. Scur r , 676 F.2d 1211, 1214 (8th Cir. 1981) (quoting Holiday Inns of America, Inc. v. B. & B. Cor p. , 409 F.2d 614, 618 (3d Cir. 1969)). Thus, the inquiry is "whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined." Dataphase, 640 F.2d at 113. The burden of proof is on the party seeking injunctive relief. United States v. Dorgan, 522 F.2d 969, 973 (8th Cir. 1975).

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Additionally, "a party moving for a preliminary injunction must necessarily establish a r elationship between the injury claimed in the party's motion and the conduct asserted in the complaint. " Devose v. Herrington, 42 F.3d 470 (8th Cir. 1994). Her e, there is no reason for the court to believe plaintiff is being denied necessary care. On October 21 and again on November 13, 2008, plaintiff filed motions for appointment of counsel. It is the practice of this court to provisionally file complaints with r equests for leave to proceed in forma pauperis. If the plaintiff is not indigent, or the complaint is frivolous, malicious or fails to state a claim for relief, in forma pauperis status may be denied. It is also the practice of this court not to appoint counsel for plaintiffs until in forma pauper is status has been granted. Then, counsel is appointed only when, in the court's discr etion, it is appropriate. THEREF ORE, IT IS ORDERED that plaintiff' s motions for appointment of counsel ar e denied, without prejudice. [4, 7] It is further RECOMMENDED that plaintiff be denied leave to proceed in forma pauperis and his claims be dismissed, pursuant to 28 U.S.C. § 1915, for failure to state a claim for which relief can be granted. [2] It is further RECOMMENDED that plaintiff's motions for preliminary injunctive relief be denied. [5, 6] Under 28 U.S.C. § 636(b)(l), the parties may make specific written exceptions to this r ecommendation within twenty days. The District Judge will consider only exceptions to the specific proposed findings and recommendations of this report. Exceptions should not include matters outside of the report and recommendation. Other matters should be addressed in a separ ate pleading for consideration by the Magistrate Judge. The statute provides for exceptions to be filed within ten days of the service of the r epor t and recommendation. The court has extended that time to twenty days, and thus, additional time to file exceptions will not be granted unless there are exceptional cir cumstances. Failure to make specific written exceptions to this report and recommendation will result in a waiver of the right to appeal. See L.R. 74.1(a)(2). 4

Dated this 22nd day of December, 2008, at Jefferson City, Missouri.

/ s/

William A. Knox

WILLIAM A. KNOX United States Magistrate Judge

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