Skipper v. Jefferson City Correctional Center et al

Filing 17

REPORT AND RECOMMENDATION, re 13 Amended Complaint filed by Daniel Paul Skipper, that claims regarding urine samples and alternative testing and claims in 16 motion regarding a wheelchair pusher be dismissed on res judicata grounds, pursuant to 2 8 U.S.C. 1915A, for failure to state a claim for which relief can be granted; 7 MOTION for order re writ of mandamus, 16 MOTION for order regarding ETS filed by Daniel Paul Skipper be denied. Objections to R&R due by 4/6/2009. Signed by Magistrate Judge William A. Knox on 3/16/2009. (skb)

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

DANIEL PAUL SKIPPER, Register No. 328366, Plaintiff, v. JEFFERSON CITY CORRECTIONAL CENTER, et al., Defendants.

) ) ) ) ) ) ) ) ) )

No. 09-4004-CV-C-SOW

REPORT, RECOMMENDATION AND ORDER Plaintiff Daniel Paul Skipper, an inmate confined in a Missouri penal institution, brought this case under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its corresponding jurisdictional statute, 28 U.S.C. § 1343.1 Plaintiff names as defendants the Jefferson City Correctional Center, David Dormire, J. Cassady. E. Ruppel, Arthur Woods, John Janes, Beth Clad, R. Sutton, Norman Sralem, Wethington, Dr. Rex Hardman and C.O. Dentew. Plaintiff complains that defendants failed to protect him from effects of environmental tobacco smoke (ETS) and that he now has spots on his lungs as a result. Plaintiff further claims rules banning smoking are not enforced. Plaintiff has requested leave to proceed without prepaying the filing fee and costs. 28 U.S.C. § 1915(a). Pursuant to the Prison Litigation Reform Act, the court is required to screen prisoner cases and must dismiss a complaint, or any portion of the complaint, if satisfied that the action is frivolous, malicious, or fails to state a claim under which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1) and (2). Additionally, under section 1915(g), if a prisoner, while incarcerated, has had three cases dismissed on any of these grounds, the court must deny leave to proceed under section 1915(a).

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

1

The only exception to the successive petition clause is when the prisoner faces "imminent danger of serious physical injury." 28 U.S.C. § 1915(g). On February 25, 2009, plaintiff filed an amended complaint. Plaintiff's claims in his amended complaint should be dismissed on res judicata grounds. Under the doctrine of res judicata, a final judgment on the merits of an action precludes the parties and those in privity with them from relitigating issues that were or could have been raised in a prior court action. Yankton Sioux Tribe v. United States Dep't of Health, 533 F.3d 634, 639 (8th Cir. 2008). To establish that a claim is barred by res judicata, a party must show (1) the first suit resulted in a final judgment on the merits; and (2) the first suit was based on proper jurisdiction, (3) both suits involve the same parties or those in privity with them, and (4) both suits are based upon the same claims or causes of action. Id. Plaintiff's claims challenging his being required to provide a urine sample for drug testing and not being provided alternative testing were previously dismissed for failure to state a claim under 42 U.S.C. § 1983 in Skipper v. Dormire, No. 07-4201 (W.D. Mo. 2009) (see, specifically, documents 183 and 193). On March 9, 2009, plaintiff filed a motion seeking relief from alleged exposure to ETS and requesting a wheelchair pusher. Plaintiff's request for a wheelchair pusher should be denied because such claims relate to his previous claims in Case No. 07-4201, which were dismissed for failure to state a claim, as set forth above. Plaintiff's request regarding alleged exposure to ETS should be denied, without prejudice, to be resolved via the normal processing of this case. Likewise, plaintiff's January 26, 2009 motion titled, "Motion for Writ of Mandamus," treated as a request for a preliminary injunction on claims that he is being unconstitutionally exposed to ETS in his cell should be denied. Although the federal courts have broad power to grant or deny equitable relief in a civil rights 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. 2

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. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1981) (quoting Holiday Inns of America, Inc. v. B. & B. Corp., 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). Additionally, "a party moving for a preliminary injunction must necessarily establish a relationship 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). Although plaintiff's allegations in his original complaint may not be sufficient to withstand a motion to dismiss or for summary judgment, they are sufficient, when liberally construed, to allow plaintiff to proceed at this stage. Pursuant to L.R. 7.1, suggestions in opposition to pending motions should be filed within twelve days after the motion is filed. Reply suggestions should be filed within twelve days after the suggestions in opposition are filed. In some circumstances, the court will give the parties additional time to file suggestions or reply suggestions. Unless an order is issued extending the time, responses and suggestions must be filed within the twelve days allotted by the Rule. Requests for an extension of time should be filed prior to the expiration of the twelve days allowed for a response. Responses and suggestions filed out-of-time, without prior leave of court, may not be considered when the court issues its ruling on the pending matter.

3

Plaintiff also filed a motion for appointment of counsel, pursuant to 28 U.S.C. § 1915. There exists no statutory or constitutional right for an indigent to have counsel appointed in a civil action for damages. Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985); Watson v. Moss, 619 F.2d 775, 776 (8th Cir. 1980) (per curiam). Rather, "[i]n civil rights matters the court may pursuant to [28 U.S.C. § 1915(e)], 'request' an attorney to represent a party if, within the court's discretion, the circumstances are such that would properly justify such a 'request.'" Mosby v. Mabry, 697 F.2d 213, 214 (8th Cir. 1982). The trial court must exercise "'a reasoned and well-informed discretion'" in deciding whether to appoint counsel. Sours v. Norris, 782 F.2d 106, 107 (8th Cir. 1986) (citation omitted). The factors to consider in determining whether or not to appoint counsel have been articulated as follows: Foremost among the 'certain factors' that an appointing court must consider is an analysis of the merits of the indigent litigant's claims from both a factual and legal standpoint. [It is] clear that a court need not appoint counsel when it considers the indigent's chances of success to be extremely slim. In addition to the merits of a case, a court may consider any of a number of factors. Among these factors are the complexity of the legal issue presented and the capability of the litigant to recognize and present the issues, the complexity and conflicting nature of the facts, the ability of the litigant to investigate his case, and the relative substantive value of the claims presented. Caruth v. Pinkney, 683 F.2d 1044, 1048 (7th Cir. 1982) (citations omitted). See also Rayes v. Johnson, 969 F.2d 700, 703 (8th Cir. 1992); Johnson v. Williams, 788 F.2d 1319 (8th Cir. 1986). Some of the problems inherent in the appointment of counsel in pro se civil cases brought by indigent litigants were discussed by this court in Ferguson v. Fleck, 480 F. Supp. 219 (W.D. Mo. 1979), at page 222: The Eighth Circuit has ruled that members of the Federal Bar should expect such appointments, on an infrequent basis . . . . Recognizing the time-consuming burdens undertaken by attorneys prosecuting Federal civil litigation, and the problems which would be invited if all colorable claims of indigents were automatically referred to appointed counsel, a troublesome issue of selectivity is imposed on the courts. Care must be exercised to avoid altering the practice of infrequently asking lawyers to serve in civil matters, an assumption underlying the Peterson decision. Meritorious claims, however, would generally benefit from the 4

assistance of counsel, but the court has few facilities permitting a forecast of substantial merit. This court has followed a liberal policy of appointing counsel in civil actions brought by prisoners in nonfrivolous cases. Green v. Wyrick, 428 F. Supp. 732, 741 (W.D. Mo. 1976). Although the court does have the inherent power to appoint counsel in limited circumstances, the United States Supreme Court has held that "[28 U.S.C.] § 1915(d) [now (e)] does not authorize the federal courts to make coercive appointments of counsel." Mallard v. United States Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296, 310 (1989). The issues in plaintiff's complaint are not complex and at this stage in the proceedings, the court does not deem it necessary to appoint counsel. Plaintiff's claims are yet subject to challenge by dispositive motions. After the parties have had an opportunity to file the appropriate motions and the court has ruled on said motions, plaintiff may again request appointment of counsel. Plaintiff's January 2, 2009 motion for discovery is denied as premature. After defendants have been served and filed an answer and a scheduling order has been entered by the court, plaintiff may seek discovery as set forth in the Federal Rules of Civil Procedure. Likewise, plaintiff's March 6, 2009 motion to set a trial date is denied as premature. IT IS ORDERED that plaintiff's motions for discovery and to set a trial date are denied as premature. [4, 15] It is further ORDERED that plaintiff's motion for appointment of counsel is denied, without prejudice. [3] It is further ORDERED that plaintiff is granted leave to proceed in forma pauperis, pursuant to the provisions of 28 U.S.C. § 1915. It is further ORDERED that within thirty days, the Attorney General of Missouri and Correctional Medical Services notify the court, in writing, for which defendants they will and will not waive service of process. It is further ORDERED that defendants answer or otherwise respond, pursuant to Rules 4 and 12, Federal Rules of Civil Procedure, within sixty days, if service of process is waived, or within twenty days after service of process, if service of process is not waived. It is further

5

ORDERED that defendants are granted leave to depose plaintiff at his place of incarceration. It is further RECOMMENDED that plaintiff's claims in his amended complaint regarding urine samples and alternative testing, and claims in his March 9, 2009 motion regarding a wheelchair pusher, be dismissed on res judicata grounds, pursuant to 28 U.S.C. § 1915A, for failure to state a claim for which relief can be granted. [16] It is further RECOMMENDED that plaintiff's motions for preliminary injunctive relief regarding ETS be denied. [7, 16] Under 28 U.S.C. § 636(b)(l), the parties may make specific written exceptions to this recommendation 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 separate pleading for consideration by the Magistrate Judge. The statute provides for exceptions to be filed within ten days of the service of the report 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 circumstances. 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). Dated this 16th day of March, 2009, at Jefferson City, Missouri.

/ s/

William A. Knox

WILLIAM A. KNOX United States Magistrate Judge

6