King v. Kesse et al

Filing 7

ORDER granting 2 Motion for Leave to Proceed in forma pauperis; dismissing complaint in part; directing clerk to effect service; directing defendants to answer or respond after service; denying as premature 6 Motion for Summary Judgment. Signed by Chief Judge Karen E. Schreier on 9/24/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ROGER BAINES KING,
Plaintiff,
vs.
MAYOR JESS KESSE;
PAUL SCHUETH, Chief of Police,
Winner SD;
CHIP SCHORDER,
Sheriff of Tripp County;
LORI KALENDA, Jail Administrator;
SGT. RICHARD BERTRAM;
WINNER CITY OFFICIALS;
COUNTY OFFICIALS;
M.D. TONY BURG; and
TRENT SINCLAIR, Assitant Chief,
Defendants.

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Civ. 12-4120-KES

ORDER GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING
COMPLAINT IN PART

Plaintiff, Roger Baines King, is an inmate at the Winner City Jail in
Winner, South Dakota. King has filed a pro se civil rights lawsuit pursuant to
42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. Docket 1, 2.
Under the Prison Litigation Reform Act (PLRA), a prisoner who “brings a
civil action or files an appeal in forma pauperis . . . shall be required to pay the
full amount of a filing fee.” 28 U.S.C. § 1915(b)(1). The court may, however,
accept partial payment of the initial filing fee where appropriate. Therefore,
“‘[w]hen an inmate seeks pauper status, the only issue is whether the inmate

pays the entire fee at the initiation of the proceedings or over a period of time
under an installment plan.’” Henderson v. Norris, 129 F.3d 481, 483 (8th Cir.
1997) (quoting McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997)).
The initial partial filing fee that accompanies an installment plan is
calculated according to 28 U.S.C. § 1915(b)(1), which requires a payment of 20
percent of the greater of:
(A)
(B)

the average monthly deposits to the prisoner’s account; or
the average monthly balance in the prisoner’s account for
the 6-month period immediately preceding the filing of the
complaint or notice of appeal.

King has reported average monthly deposits to his prisoner trust account of
$320 and an average monthly balance of $90. Docket 4. Based on this
information, the court grants King leave to proceed in forma pauperis provided
he pays an initial partial filing fee of $64, which is approximately 20 percent of
$320.
But the inquiry does not end there. The PLRA requires the court to
screen King’s complaint to determine whether any claims should be dismissed.
Pursuant to the PLRA, the court must dismiss an action or any portion thereof
if the prisoner has raised a claim that “(i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B)(i)–(iii).

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STANDARD OF REVIEW
A claim “is frivolous where it lacks an arguable basis in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore,
dismiss a claim as frivolous when it is “based on an indisputably meritless
legal theory” or where the factual contentions “are clearly baseless.” Id. at 327.
The court may dismiss a complaint for failure to state a claim when “it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46 (1957).
In reviewing a complaint under this standard, “[t]he court must presume that
the factual allegations in the complaint are true and accord all reasonable
inferences from those facts to the [pleader].” Valiant-Bey v. Morris, 829 F.2d
1441, 1443 (8th Cir. 1987) (citing Holloway v. Lockhart, 792 F.2d 760, 762 (8th
Cir. 1986)).
Pro se complaints, “ ‘however inartfully pleaded,’ [are] held to ‘less
stringent standards than formal pleadings drafted by lawyers.’ ” Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)); see also Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995)
(noting that “civil rights pleadings should be construed liberally”). Nonetheless,
a pro se complaint must comply with the minimal requirements set forth in the
Federal Rules of Civil Procedure, which specifically require pleadings to contain
“a short and plain statement of the claim showing that the pleader is entitled to

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relief.” Fed. R. Civ. P. 8(a)(2). Moreover, although a pro se complaint need not
contain detailed factual allegations, it must “allege facts sufficient to support
the claims advanced.” Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). The
court is not required to “supply additional facts, nor will [it] construct a legal
theory that assumes facts that have not been pleaded.” Id. (citing Dunn v.
White, 880 F.2d 1188, 1197 (10th Cir. 1989)). Finally, a pro se complaint must
contain “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). If the complaint does not contain these bare essentials,
dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir.
1985).
DISCUSSION
“[T]o state a claim for relief under § 1983, a plaintiff must allege
sufficient facts to show ‘(1) that the defendant(s) acted under color of state law,
and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right.’ ” Zutz v. Nelson, 601 F.3d 842, 848
(8th Cir. 2010) (quoting Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th
Cir. 2009)). In the instant case, King claims that defendants denied him access
to medical care, thus subjecting him to cruel and unusual punishment in
violation of the Eighth Amendment. Docket 1. King also alleges that defendants
violated his constitutional rights under the Fifth, Sixth, Seventh, and

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Fourteenth Amendments. Id. To remedy these constitutional violations, King is
requesting $10 million. Id.
For purposes of determining whether King has sufficiently pleaded a
claim to survive initial review under § 1983, the court will assume that each of
the named defendants who is being sued in his or her individual and official
capacities was acting under color of state law when the alleged wrongful
conduct occurred. To determine whether the alleged wrongful conduct
amounted to a violation of King’s constitutional rights, the court will address
the facts as presented in King’s complaint.
I.

King Has Alleged Facts Sufficient to Support a Claim Under
the Eighth Amendment.
“[D]eliberate indifference to serious medical needs of prisoners

constitutes ‘the unnecessary and wanton infliction of pain’ proscribed by the
Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg
v. Georgia, 428 U.S. 153, 169–173 (1976)). “This is true whether the
indifference is manifested by prison doctors in their response to the prisoner’s
needs or by prison guards in intentionally denying or delaying access to
medical care or intentionally interfering with the treatment once prescribed.”
Id. at 104–05. “[T]his does not mean, however, that every claim by a prisoner
that he has not received adequate medical treatment states a violation of the
Eighth Amendment.” Id. at 105. “[A] prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical
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needs.” Id. at 106. Allegations of negligence will not suffice. See Jolly v.
Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (“The prisoner must show more
than negligence, more even than gross negligence, and mere disagreement with
treatment decisions does not rise to the level of a constitutional violation.”).
The deliberate indifference standard includes both an objective and
subjective component. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.
1997) (citing Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997)). The
plaintiff “must demonstrate (1) that they suffered objectively serious medical
needs and (2) that the prison officials actually knew of but deliberately
disregarded those needs.” Id. (citing Coleman, 114 F.3d at 784). “A serious
medical need is one that has been diagnosed by a physician as requiring
treatment, or one that is so obvious that even a layperson would easily
recognize the necessity for a doctor’s attention.” Coleman, 114 F.3d at 784. To
be liable for deliberately disregarding medical needs, “the official must both be
aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994).
In the instant case, King represents that all defendants were aware of the
imminent danger posed by King’s excessive chronic pain and infection, yet
disregarded King’s condition by failing to provide him with an antiobiotic or any
pain medications after he had his tonsils removed. King further alleges that, by

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ignoring his medical requests and grievances, defendants acted with a reckless
disregard for his health. As a result of defendants’ deliberate indifference, King
has suffered mental anguish and excessive physical pain.
Based on the above-referenced facts, the court finds that King has
sufficiently pleaded an Eighth Amendment violation to survive initial review.
First, King alleges that he has suffered from an objectively serious medical
need–his chronic pain and infection are health conditions that a layperson
might recognize as requiring medical attention. Second, King specifically
alleges that defendants were aware of his health conditions, yet ignored his
requests for medical attention. Thus, for purposes of initial review, the court
finds that King has sufficiently alleged that defendants acted with deliberate
indifference to his serious medical needs.
II.

King Has Not Alleged Facts Sufficient to Support a Claim
Under the Fifth, Sixth, Seventh, or Fourteenth Amendment.
King loosely alleges that defendants violated his constitutional rights

under the Fifth, Sixth, Seventh, and Fourteenth Amendments. King did not,
however, provide any facts to support such allegations. Because a complaint
must contain “facts sufficient to support the claims advanced,” Stone v. Harry,
364 F.3d 912, 914 (8th Cir. 2004), rather than mere “labels and conclusions,”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), the court concludes
that King’s Fifth, Sixth, Seventh, and Fourteenth Amendment claims have not
been sufficiently pleaded to survive initial review. It is therefore
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ORDERED that King’s motion for leave to proceed in forma pauperis
(Docket 2) is granted. King will make an initial partial payment of $64 by
October 22, 2012, made payable to the Clerk, U.S. District Court.
IT IS FURTHER ORDERED that the institution having custody of King is
directed that whenever the amount in King’s trust account exceeds $10,
monthly payments that equal 20 percent of the funds credited to the account
the preceding month will be forwarded to the United States District Court
Clerk’s office pursuant to 28 U.S.C. § 1915(b)(2), until the filing fee of $350 is
paid in full.
IT IS FURTHER ORDERED that King’s complaint is dismissed in part
pursuant to 28 U.S.C. § 1915. The only claim sufficiently pleaded to survive
initial review under § 1915 is King’s claim that prison officials violated his
Eighth Amendment right to be free from cruel and unusual punishment.
IT IS FURTHER ORDERED that the clerk of court will cause service of
the complaint, summons, and this order upon defendants. All costs of service
will be advanced by the United States.
IT IS FURTHER ORDERED that defendants will serve and file an answer
or responsive pleading to the complaint on or before 21 days following the date
of service. Defendants need only respond to King’s remaining claim.
IT IS FURTHER ORDERED that King will serve upon defendants, or, if
appearance has been entered by counsel, upon their attorney, a copy of every

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further pleading or other document submitted for consideration by the court.
He will include with the original paper to be filed with the clerk of court a
certificate stating the date and that a true and correct copy of any document
was mailed to defendants or their counsel.
IT IS FURTHER ORDERED that King’s motion for summary judgment
(Docket 6) is denied as premature. A motion for summary judgment cannot be
filed until defendants are, at a minimum, served with the summons and
complaint.
Dated September 24, 2012.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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