Augustine v. Pitchford et al

Filing 5

ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES AND 1915A SCREENINGgranting 3 Motion for Leave to Proceed in forma pauperis. Signed by U.S. District Judge Karen E. Schreier on June 4, 2020. (DLC)

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DANIEL TODD AUGUSTINE,

4:20-CV-04072-KES

Plaintiff,
vs.
SAVANNAH PITCHFORD,
Captain/Officer in Charge in her
individual and official capacity; DARIN
YOUNG, Chief Warden, in his individual
and official capacity; JESSICA COOK,
Facility Warden, in her individual and
official capacity; JESSICA SCHREURS,
Director of Nursing/RN, in her
individual and official capacity;
DERRICK BIEBER, Unit Manager, in
his individual and official capacity; and
MARY CARPENTER, Director of Prison
Health Services, in her official capacity,

ORDER GRANTING PLAINTIFF’S
MOTION TO PROCEED WITHOUT
PREPAYMENT OF FEES AND 1915A
SCREENING

Defendants.
Plaintiff, Daniel Todd Augustine, filed a pro se civil rights lawsuit under
42 U.S.C. § 1983. Docket 1. Augustine moves for leave to proceed in forma
pauperis and included his prisoner trust account report. Dockets 3, 4.
I.

Motion to Proceed Without Prepayment of Fees
Augustine reports average monthly deposits of $24.42 and an average

monthly balance of $14.92. Docket 4. Under the Prison Litigation Reform Act
(PLRA), a prisoner who “brings a civil action or files an appeal in forma

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pauperis . . . shall be required to pay the full amount of a filing fee.” 28 U.S.C.
§ 1915(b)(1). “ ‘[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) the average monthly deposits to the prisoner’s account; or
(B) the average monthly balance in the prisoner’s account for the 6month period immediately preceding the filing of the complaint or
notice of appeal.
Based on the information regarding Augustine’s prisoner trust account, the
court grants Augustine leave to proceed without prepayment of fees and waives
the initial partial filing fee. See 28 U.S.C. § 1915(b)(4) (“In no event shall a
prisoner be prohibited from bringing a civil action . . . for the reason that the
prisoner has no assets and no means by which to pay the initial partial filing
fee.”).
In order to pay his filing fee, Augustine must “make monthly payments of
20 percent of the preceding month’s income credited to the prisoner’s account.”
28 U.S.C. § 1915(b)(2). The statute places the burden on the prisoner’s
institution to collect the additional monthly payments and forward them to the
court as follows:

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After payment of the initial partial filing fee, the prisoner shall be
required to make monthly payments of 20 percent of the preceding
month’s income credited to the prisoner’s account. The agency
having custody of the prisoner shall forward payments from the
prisoner’s account to the clerk of the court each time the amount in
the account exceeds $10 until the filing fees are paid.
28 U.S.C. § 1915(b)(2). The installments will be collected pursuant to this
procedure. The Clerk of Court will send a copy of this order to the appropriate
financial official at Augustine’s institution. Augustine remains responsible for
the entire filing fee, as long as he is a prisoner. See In re Tyler, 110 F.3d 528,
529-30 (8th Cir. 1997).
II.

1915A Screening
A.

Factual Background

The facts alleged in Augustine’s complaint are: that he acquired an open
wound in the Jameson Prison Annex on January 23, 2020. Docket 1 at 6. He
claims that he made several trips to health services but was denied proper
treatment. Id. Augustine reported to “security staff, medical staff, unit staff,
[and] prison administrator staff” that the condition of his open wound
continued to worsen and “defendants made no reasonable effort to help[.]” Id.
at 8. Augustine’s wound became “MRSA infected” and he claims he was still
not provided proper treatment. Id. at 6. Augustine was taken to the emergency
room and went into “urgent surgery to stop the spread of the infection and to
save [Augustine’s] knee.” Id. Augustine claims to have exhausted his
administrative remedies and fears that “defendants will not provide adequate
medical after-care or rehabilitation as means of retaliation.” Id. He seeks

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monetary relief in the amount of 10 million dollars and claims to have suffered
physically and psychologically from the defendants’ alleged actions. Id. at 6, 11.
B.

Legal Standard

The court must assume as true all facts well pleaded in the complaint.
Estate of Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Civil rights and
pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89,
94 (2007); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even
with this construction, “a pro se complaint must contain specific facts
supporting its conclusions.” Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.
1985); see also Ellis v. City of Minneapolis, 518 F. App’x 502, 504 (8th Cir.
2013). Civil rights complaints cannot be merely conclusory. Davis v. Hall, 992
F.2d 151, 152 (8th Cir. 1993); Parker v. Porter, 221 F. App’x 481, 482 (8th Cir.
2007).
A complaint “does not need detailed factual allegations . . . [but] requires
more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). If it does not contain these bare essentials, dismissal is appropriate.
Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Twombly requires that
a complaint’s factual allegations must be “enough to raise a right to relief above
the speculative level on the assumption that all of the complaint’s allegations
are true.” Twombly, 550 U.S. at 555; see also Abdullah v. Minnesota, 261 F.
App’x 926, 927 (8th Cir. 2008) (noting that a complaint must contain either
direct or inferential allegations regarding all material elements necessary to
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sustain recovery under some viable legal theory). Under 28 U.S.C. § 1915A, the
court must screen prisoner complaints and dismiss them if they are
“(1) frivolous, malicious, or fail[] to state a claim upon which relief may be
granted; or (2) seek[] monetary relief from a defendant who is immune from
such relief.” 28 U.S.C. § 1915A(b). The court will now assess each individual
claim under 28 U.S.C. § 1915A.
C.

Legal Analysis
1.

Official Capacity Claims

Augustine sues defendants, Savannah Pitchford, Darin Young, Jessica
Cook, Jessica Schreurs, Derrick Bieber, and Mary Carpenter, in their official
capacities. Docket 1 at 1-3. 1 All defendants are employed by the South Dakota
Department of Corrections. Id. Augustine seeks relief through monetary
damages totaling 10 million dollars. Id. at 11. He does not specifically request
injunctive relief. Id.
The Supreme Court has stated, “a suit against a state official in his or
her official capacity is not a suit against the official but rather is a suit against
the official’s office.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)
(citing Brandon v. Holt, 469 U.S. 464, 471 (1985)). The Eleventh Amendment
generally acts as a bar to suits against a state for money damages unless the
state has waived its sovereign immunity. Id. But when an official capacity claim

Augustine sues Pitchford, Young, Cook, Schreurs, and Bieber in their
individual capacities. Docket 1 at 1-3. He does not sue Carpenter in her
individual capacity but only in her official capacity. Id. at 2.
1

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is asserted for injunctive relief against a state officer, the defense of qualified
immunity does not apply. See Pearson v. Callahan, 555 U.S. 223, 242-43
(2009).
Because the state of South Dakota has not waived its sovereign
immunity, Augustine’s claims against defendants, Pitchford, Young, Cook,
Schreurs, Bieber, and Carpenter, in their official capacities for monetary
damages are dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(1). 2
2. Individual Capacity Claims
Augustine raises three claims of violations in his complaint (medical
negligence, delayed treatment, and deliberate indifference) against Pitchford,
Young, Cook, Schreurs, and Bieber in their individual capacities. Docket 1 at
6, 8, 10. “A prisoner’s Eighth Amendment rights are violated if prison officials
show ‘deliberate indifference’ to the prisoner’s ‘serious medical needs.’ ” Olson
v. Bloomberg, 339 F.3d 730, 735 (8th Cir. 2003) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)). “In order to state a cognizable claim, a prisoner must
allege acts or omissions sufficiently harmful to evidence deliberate indifference
to serious medical needs.” Estelle, 429 U.S. at 106. More specifically, a prisoner
must allege “ ‘(1) that [he] suffered [from] objectively serious medical needs and
(2) that the prison officials actually knew of but deliberately disregarded those
needs.’ ” Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting Dulany
v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997)).

Because Carpenter is only sued in her official capacity, she is dismissed as a
defendant under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and
2

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“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 v. Rahija,
114 F.3d 778, 784 (8th Cir. 1997) (quoting Camberos v. Branstad, 73 F.3d
174, 176 (8th Cir. 1995)). To demonstrate deliberate indifference, “ ‘[t]he
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)). “Deliberate indifference may be manifested . . . by prison officials
in intentionally denying or delaying access to medical care or intentionally
interfering with prescribed treatment.” Meloy v. Bachmeier, 302 F.3d 845,
849 (8th Cir. 2002) (citing Estelle, 429 U.S. at 104-05).
Here, Augustine claims that defendants knew about his open
wound because he reported the condition to health services and then
reported the condition of the wound to defendants. Docket 1 at 8. He
claims that he made “every possible effort” to inform the defendants about
the condition of his wound but that “no meaningful attempt at assistance
or treatment was provided until” he had to have urgent surgery to treat
his infection. Id. at 10. Augustine has alleged sufficient facts for his
Eighth Amendment claim against defendants to survive 28 U.S.C. § 1915A
screening.

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Thus, it is ORDERED:
1. That Augustine’s motion to proceed without prepayment of fees
(Docket 3) is granted.
2. That the institution having custody of Augustine is directed that
whenever the amount in Augustine’s trust account, exclusive of funds
available to him in his frozen account, exceeds $10.00, monthly
payments that equal 20 percent of the funds credited the preceding
month to Augustine’s trust account shall be forwarded to the U.S.
District Court Clerk’s Office under to 28 U.S.C. § 1915(b)(1), until the
$350 filing fee is paid in full.
3. That claims against all defendants in their official capacities are
dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
4. Augustine’s Eighth Amendment claim against defendants Savannah
Pitchford, Darin Young, Jessica Cook, Jessica Schreurs, and Derrick
Bieber in their individual capacities survives 28 U.S.C. § 1915A
review.
5. The Clerk shall send a blank summons form and Marshal Service
Form (Form USM-285) to Augustine so that he may cause the
complaint to be served upon the defendants.
6. Augustine shall complete and send the Clerk of Courts a separate
summons and USM-285 forms for the defendants. Upon receipt of the
completed summonses and USM-285 forms, the Clerk of Court will

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issue the summons. If the completed summons and USM-285 forms
are not submitted as directed, the complaint may be dismissed.
7. The United States Marshal Service shall serve the completed
summonses, together with a copy of the complaint (Docket 1) and this
order, upon the defendants.
8. Defendants will serve and file an answer or responsive pleading
to the amended complaints and supplement on or before 21 days
following the date of service or 60 days if the defendants fall under Fed.
R. Civ. P. 12(a)(2) or (3).
9. The clerk of the court is directed to send a copy of this order to the
appropriate official at Wilson’s institution.
10. Augustine will keep the court informed of his current address at all
times. All parties are bound by the Federal Rules of Civil Procedure
and by the court’s Local Rules while this case is pending.
Dated June 4, 2020.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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