Good Voice Elk v. Perrett et al
Filing
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ORDER granting 3 Motion for Leave to Proceed in forma pauperis; denying 6 Motion to Appoint Counsel ; denying 8 Motion for TRO, dismissing several claims; directing clerk to effect service; directing defendants to answer remaining claims. Signed by U.S. District Judge Karen E. Schreier on 1/15/2013. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
BYRON GOOD VOICE ELK,
Plaintiff,
vs.
CORRECTIONAL OFFICER
PERRETT, CORRECTIONAL
OFFICER NEAROVICK,
LIEUTENANT WENDLING,
MEDICAL STAFF KITTY,
HEALTH SERVICE, and MENTAL
HEALTH, all in their individual
and official capacities,
Defendants.
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CIV. 12-4198-KES
ORDER
Screening
Pending before the court is a complaint1 alleging several causes of action
pursuant to 42 U.S.C. § 1983. Under 28 U.S.C. § 1915A(a), the court is
required to screen all prisoner cases. The Supreme Court has held that a
complaint must present “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). The court
may dismiss a complaint if it is frivolous, malicious, fails to state a claim upon
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On December 14, 2012, the court granted plaintiff’s request for leave to
amend his complaint. Docket 11. Plaintiff was given until January 4, 2013 to
submit an amended complaint, but he failed to comply with that requirement.
Id. Accordingly, the court has screened plaintiff’s original complaint, which he
filed on November 16, 2012. Docket 1.
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).
Plaintiff, Byron Good Voice Elk, first alleges that Correctional Officer
Nearovick used excessive force and thereby inflicted cruel and unusual
punishment in violation of the Eighth Amendment when he “slamed [plaintiff]
up against the wall and proceeded to Assult [plaintiff] [while he] was
Handcuffed.” Docket 1. Plaintiff also alleges Correctional Officer Perrett
“slammed [him] to the floor where he proceed to kick and punch [plaintiff] in
the back.” Id. “It is obdurate, wanton or intentional inflictions of unnecessary
pain, not mere inadvertence or good faith mistakes as to the amount of force
reasonably called for, which violate the Eighth Amendment.” Hickey v. Reeder,
12 F.3d 754, 758 (8th Cir. 1993). Here, plaintiff alleges he was assaulted
without provocation while he was handcuffed. The court finds plaintiff has
sufficiently stated a claim upon which relief may be granted. See Hudson v.
McMillian, 503 U.S. 1, 6, 9 (1992).
Plaintiff next alleges Lieutenant Wendling violated his constitutional
rights by failing to stop the officers he supervised from using excessive force
against plaintiff. “To establish personal liability of the supervisory defendant[],
[the plaintiff] must allege specific facts of personal involvement in, or direct
responsibility for, a deprivation of his constitutional rights.” Mayorga v.
Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006). Here, plaintiff alleges Lieutenant
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Wendling failed to negotiate with plaintiff, and then placed him in harm’s way
when he opened the cell door, sprayed pepper spray, and failed to intervene
when “his” officers used excessive force. The court finds plaintiff has stated
sufficient facts indicating the personal involvement of Lieutenant Wendling in
the events alleged to have violated plaintiff’s constitutional rights. As a result,
the court will allow this claim to proceed.
Plaintiff’s next claim alleges he received inadequate medical care when
Health Services repeatedly diagnosed him with anxiety attacks when, in fact,
he was suffering from a collapsed lung. “A prison official exhibits deliberate
indifference when the official actually ‘knows of and disregards’ a prisoner’s
serious medical needs.” Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995)
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Thus, prison officials
are not liable unless they “knew that the condition created an excessive risk to
the inmate’s health and then failed to act on that knowledge.” Long v. Nix, 86
F.3d 761, 765 (8th Cir. 1996). “Deliberate indifference may include
intentionally denying or delaying access to medical care, or intentionally
interfering with treatment or medication that has been prescribed.” Vaughan v.
Lacey, 49 F.3d 1344, 1346 (8th Cir. 1995) (citing Estelle v. Gamble, 429 U.S. 97
(1976)). “ ‘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 v. Knudsen, 205 F.3d 1094, 1096
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(8th Cir. 2000) (quoting Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d
35, 37 (8th Cir. 1995)).
Here, the complaint alleges plaintiff was repeatedly seen by medical staff
who assessed his oxygen levels and diagnosed him with anxiety/panic attacks.
There is nothing which demonstrates that the medical staff knew plaintiff was
in need of a greater level of medical care and disregarded that need. Rather, the
facts alleged in the complaint demonstrate negligence at most. As a result, the
court finds this allegation does not state a claim upon which relief may be
granted. The claim is dismissed without prejudice.
Plaintiff’s next claim names Medical Staff Kitty as a defendant and
alleges she was deliberately indifferent to his serious medical needs. To
demonstrate a violation, plaintiff must show that he had an objectively serious
medical need that was known to prison officials, but which those prison
officials deliberately disregarded. See Jolly, 205 F.3d at 1096 (quoting Dulany v.
Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997)). “An objectively serious
medical need is one that either has been diagnosed by a physician as requiring
treatment, or is so obvious that even a ‘layperson would easily recognize the
necessity for a doctor’s attention.’ ” Jones v. Minn. Dep’t of Corr., 512 F.3d 478,
481 (8th Cir. 2008) (quoting Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir.
1997)).
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Plaintiff alleges Nurse Kitty knew he had a colostomy bag2 and when the
bag fell off, she “refused to do anything about it.” The exhibits submitted with
the complaint indicate Health Services is required to change plaintiff’s
colostomy bag weekly and reinforce the bag as needed. As a result, the court
finds plaintiff has properly set forth sufficient facts, which, if true, would prove
he has an objectively serious medical need. Additionally, plaintiff has alleged
Nurse Kitty acted with deliberate indifference by refusing him treatment. As a
result, the court will allow the claim to proceed.
Plaintiff’s final cause of action alleges defendants have violated his
constitutional and statutory rights to proper mental health care by housing
him in a unit for inmates with serious mental illnesses, which places such
inmates in an isolated confinement situation. Plaintiff contends that such
isolation is more harmful to his mental condition and asserts the refusal to
move him to a different unit for “proper treatment” is a violation of his
constitutional rights.
The court finds plaintiff fails to state a claim upon which relief may be
granted. As stated previously, a prisoner does not have a constitutional right to
a particular course of treatment. See Jolly, 205 F.3d at 1096 (quoting Estate of
Rosenberg, 56 F.3d at 37). Moreover, a mere disagreement with the course of
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Plaintiff describes his condition as “a whole on [his] stomach” and refers
to a bag falling off. The court surmises that the condition he is referring to is a
colostomy and will refer to it as such.
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treatment does not rise to the level of a constitutional violation. See id. Here,
plaintiff’s complaint demonstrates he suffers from severe mental illness and
has been placed in a unit that provides care for inmates who suffer such
illnesses. Nothing in his complaint demonstrates that he has not received
treatment for his illnesses, only that he wishes for a different course of
treatment. As a result, the court finds plaintiff has not set forth a claim under
the Eighth Amendment for deliberate indifference to his serious medical needs.
The court further finds plaintiff has not set forth a viable claim regarding
the conditions of his confinement. The United States Supreme Court, in
Rhodes v. Chapman, 452 U.S. 337, 347 (1981), stated that “[c]onditions must
not involve the wanton and unnecessary infliction of pain, nor may they be
grossly disproportionate to the severity of the crime warranting
imprisonment. . . . To the extent that such conditions are restrictive and even
harsh, they are part of the penalty that criminal offenders pay for their
offenses.” Plaintiff has not alleged facts that show that he is being deprived the
“minimal civilized measure of life’s necessities” or that the conditions amount
to a “wanton and unnecessary infliction of pain.” As the Supreme Court stated,
“[t]he Constitution . . . ‘does not mandate comfortable prisons,’ . . . and only
those deprivations denying ‘the minimal civilized measure of life’s necessities,’ .
. . are sufficiently grave to form the basis of an Eighth Amendment violation.”
Wilson v. Seiter, 501 U.S. 294 (1991) (citations omitted). Instead, the facts set
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forth in the complaint indicate plaintiff suffers from a serious mental illness
and has been placed in a unit that provides care for inmates who suffer such
illnesses. While it is understandable that plaintiff would prefer to be in a less
restrictive environment, he does not have a constitutional right to be housed in
a particular location. See Rouse v. Benson, 193 F.3d 936, 940 (8th Cir. 1999)
(citing Olim v. Wakinekona, 461 U.S. 238, 245 (1983)). As a result, the court
finds plaintiff has not set forth a facially plausible claim upon which relief may
be granted, and the claim must be dismissed. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
B.
Motion to Proceed In Forma Pauperis
Plaintiff also moves for leave to proceed in forma pauperis. 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). His prisoner trust account
report indicates that his current balance equals $582.62. His average monthly
deposit equals $0 and his average monthly balance equals $668.07. Thus,
plaintiff owes an initial partial filing fee of $133.61 (20 percent of $668.07).
C.
Motion for a Temporary Restraining Order
Plaintiff also asks the court to issue a restraining order against Officer
Nearovick and Officer Perrett to prevent them from teasing plaintiff. He also
requests a restraining order against Lieutenant Wendling because plaintiff
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“get[s] all paranoid and anxious because he refused to help [him.]” Plaintiff also
requests a restraining order against Nurse Kitty for refusing to provide care
and against Health Services because they do not respond to each of his kites
and “most of his medical needs.” Finally, plaintiff wishes the court to issue a
restraining order against Mental Health because they refuse to give him
adequate medical care and provide him with copies of his mental health
records.
Under Fed. R. Civ. P. 65(b), a temporary restraining order may only be
issued if the movant has submitted an affidavit setting forth specific facts
which demonstrate that an “immediate and irreparable injury, loss, or damage
will result to the movant before the adverse party can be heard in opposition[.]”
Plaintiff has not provided an affidavit setting forth specific facts that clearly
demonstrate an “immediate and irreparable injury, loss, or damage[.]” See Fed.
R. Civ. P. 65(b)(2). As a result, the court denies the motion for a temporary
restraining order.
Moreover, the court finds the motion would fail on the merits if the court
were to construe the motion as a request for preliminary injunctive relief.
“[W]hether a preliminary injunction should issue involves consideration of
(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict upon
other parties litigant; (3) the probability that [the] movant will succeed on the
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merits; and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640
F.2d 109, 113 (8th Cir. 1981). Though no one factor controls, plaintiff must
demonstrate a threat of irreparable harm. See Baker Elec. Co-op, Inc. v. Chaske,
28 F.3d 1466, 1472 (8th Cir. 1994). Furthermore, the Eighth Circuit has held
that “judicial restraint is especially called for in dealing with the complex and
intractable problems of prison administration.” Rogers v. Scurr, 676 F.2d 1211,
1214 (8th Cir. 1982). Here, the court finds teasing and paranoia are not a basis
for demonstrating irreparable harm. While the failure to provide adequate
health care may result in irreparable harm, the court has dismissed the claims
against the Health Service and Mental Health. As a result, the court finds
injunctive relief should not be granted.
D.
Motion for Appointment of Counsel
Plaintiff also seeks the appointment of counsel. There is no statutory or
constitutional right to counsel in a civil matter. See Stevens v. Redwing, 146
F.3d 538, 546 (8th Cir. 1998). In determining whether or not to appoint
counsel, the court must consider the “likelihood that the plaintiff and the court
will benefit from the assistance of counsel, the factual complexity of the case,
the plaintiff’s ability to investigate the facts and present his claim, the existence
of conflicting testimony, and the complexity of the legal issues.” Rayes v.
Johnson, 969 F.2d 700, 703 (8th Cir. 1992) (citations omitted). The court finds
that the complexity of the factual and legal matters are not great. The court
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also finds that plaintiff has the ability to present his claim to the court and to
investigate the facts. As a result, the court finds that the appointment of
counsel in this matter would not be of great benefit. Accordingly, it is
ORDERED that plaintiff’s causes of action naming Health Services and
Mental Health as defendants regarding the misdiagnosis of his collapsed lung
and his placement in a unit for inmates suffering serious mental illness
(Docket 1) are dismissed without prejudice.
IT IS FURTHER ORDERED the remainder of the complaint may proceed.
IT IS FURTHER ORDERED that plaintiff’s motion to proceed in forma
pauperis (Docket 3) is granted. Plaintiff should pay an initial partial filing fee of
$133.61 by February 15, 2013.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel
(Docket 6) is denied.
IT IS FURTHER ORDERED that plaintiff’s motion for temporary
restraining order (Docket 8) is denied.
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.
District Court Clerk’s Office pursuant to 28 U.S.C. § 1915(b)(2), until the filing
fee is paid in full.
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IT IS FURTHER ORDERED that plaintiff remains obligated to pay the
filing fee in its entirety regardless of the disposition of this action.
IT IS FURTHER ORDERED that the clerk of court will cause service of
the complaint, summons, the motion for copies of records, and this order upon
the remaining 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, the motion for temporary restraining
order, and the motion for copies of records on or before 21 days following the
date of service. Defendants need only respond to the remaining claims.
IT IS FURTHER ORDERED that plaintiff will serve upon defendants, or, if
appearance has been entered by counsel, upon their attorney, a copy of every
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.
Dated January 15, 2013.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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