Duffy v. D.O.C. Mental Health Services et al

Filing 6

ORDER Dismissing Case and granting IFP. Signed by U.S. District Judge Karen E. Schreier on 01/02/13. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SHAWN ALAN DUFFY,
Plaintiff,
vs.
DEPARTMENT OF CORRECTIONS
MENTAL HEALTH SERVICES;
STATE PRISON “JAMESON”
MENTAL HEALTH; and
DR. DAVIS, MD, in his official
and individual capacity,
Defendants.

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CIV. 12-4192-KES

ORDER GRANTING IFP AND
DISMISSING CASE

Plaintiff, Shawn Duffy, seeks relief pursuant to 42 U.S.C. § 1983. Duffy
alleges defendants have demonstrated deliberate indifference to his serious
medical needs. Duffy asserts he was previously prescribed medication to
control his narcolepsy and chronic social anxiety, but this medication was
discontinued by Dr. Davis upon Duffy’s entry into the state penal system. Duffy
contends Dr. Davis’s failure to continue the medication is a violation of his
constitutional rights.
Under 28 U.S.C. § 1915A(a), the court is required to screen all prisoner
cases. A case may be dismissed if it is frivolous, malicious, fails to state a claim
upon which relief may be granted or seeks monetary relief against a defendant
who is immune from such relief. See 28 U.S.C. § 1915A(b).

Here, Duffy wishes to pursue a claim under the Eighth Amendment. “It is
well established that ‘[d]eliberate indifference to a prisoner’s serious medical
needs is cruel and unusual punishment in violation of the Eighth
Amendment.’” Langford v. Norris, 614 F.3d 445, 459 (8th Cir. 2010) (quoting
Gordon ex rel. Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006)). To
demonstrate a violation, Duffy must show that he had an objectively serious
medical need that was known to prison officials but was deliberately
disregarded by the prison officials. See Jolly v. Knudsen, 205 F.3d 1094, 1096
(8th Cir. 2000) (quoting Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.
1997)). “ ‘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.’ ” Jolly, 205 F.3d at 1096 (quoting Estate
of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)).
In his complaint, Duffy alleges that he is under the care of Dr. Davis and
that Dr. Davis has chosen a different course of treatment. He states “I No
without This medication it is just a matter of time I have a severe panic Attack
and I will be hospitalized.” Docket 4. The supplement also demonstrates,
however, that he is being monitored by medical professionals and is currently
prescribed medication for the treatment of his conditions. “Prisoners do not
have a constitutional right to any particular type of treatment.” Long v. Nix, 86
F.3d 761, 765 (8th Cir. 1996). The Supreme Court has held that a complaint

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must present “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). Duffy’s
complaint and supplement allege a difference of opinion as to treatment and, at
most, negligence, neither of which are actionable under § 1983. As a result, the
court finds Duffy has failed to state sufficient facts to present a plausible claim.
Duffy also moves the court for leave to proceed in forma pauperis. His
prisoner trust account report indicates that his current balance equals
negative $118.43. His average monthly deposit equals $0 and his average
monthly balance equals negative $37.64. Under the Prison Litigation Reform
Act, plaintiff must pay 20 percent of the greater of the average monthly
deposits to his prisoner account or the average monthly balance of the account.
See 28 U.S.C. § 1915(b)(1). Thus, plaintiff owes an initial partial filing fee of $0
(20 percent of $0). Accordingly, it is
ORDERED that plaintiff’s complaint (Docket 1) is dismissed for failure to
state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that plaintiff’s motion to proceed in forma
pauperis (Docket 2) is granted.
IT IS FURTHER ORDERED that the institution having custody of the
plaintiff is directed that whenever the amount in plaintiff’s trust account
exceeds $10, monthly payments that equal 20 percent of the funds credited the
preceding month to the plaintiff’s trust account will be forwarded to the U.S.

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District Court Clerk’s Office pursuant to 28 U.S.C. § 1915(b)(2), until the filing
fee is paid in full.
IT IS FURTHER ORDERED that plaintiff remains obligated to pay the
filing fee in its entirety regardless of the disposition of this action.
Dated January 2, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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