Blue v. Dr. Tippen

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION CARLOS R. BLUE, ) ) Plaintiff, ) ) v. ) No. 4:21-cv-00689-SRW ) DEPARTMENT OF CORRECTIONS/ ) CORIZON STAFF, et al., ) ) Defendants. ) MEMORANDUM AND ORDER This matter comes before the Court on the motion of plaintiff Carlos R. Blue for leave to commence this civil action without prepayment of the required filing fee. (Docket No. 2). Having reviewed the motion and the financial information submitted in support, the Court has determined that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial partial filing fee of $61.33. See 28 U.S.C. § 1915 (b)(1). Additionally, for the reasons discussed below, the Court will order plaintiff to file an amended complaint on a Court form. 28 U.S.C. § 1915 (b)(1) Pursuant to 28 U.S.C. § 1915 (b)(1), a prisoner bringing a civil action in forma pauperis is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner’s account, or (2) the average monthly balance in the prisoner’s account for the prior six-month period. After payment of the initial partial filing fee, the prisoner is required to 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 agency having custody of the prisoner will forward these monthly payments to the Clerk of Court each time the amount in the prisoner’s account exceeds $10.00, until the filing fee is fully paid. Id. In support of his motion for leave to proceed in forma pauperis, plaintiff has submitted a copy of his certified inmate account statement. (Docket No. 7). The account statement shows an average monthly deposit of $306.66. The Court will therefore assess an initial partial filing fee of $61.33, which is 20 percent of plaintiff’s average monthly deposit. Legal Standard on Initial Review Under 28 U.S.C. § 1915 (e)(2), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 . Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw upon judicial experience and common sense. Id. at 679 . The court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not required to “accept as true any legal conclusion couched as a factual allegation”). When reviewing a pro se complaint under 28 U.S.C. § 1915 (e)(2), the Court must give it the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction” means that if the essence of an allegation is discernible, the district court should construe the plaintiff’s complaint in a way that permits his or her claim to be considered within the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint”). In addition, affording a pro se complaint the benefit of a liberal construction does not mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993). The Complaint Plaintiff is a self-represented litigant who is currently incarcerated at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre, Missouri. He brings this civil action pursuant to 42 U.S.C. § 1983 , naming the Missouri Department of Corrections and Corizon Staff as defendants. (Docket No. 1 at 2). The case arises out of defendants’ alleged deliberate indifference to plaintiff’s medical needs. In his “Statement of Claim,” plaintiff asserts that he “injured [his] right knee playing basketball” while at the Southeast Correctional Center. (Docket No. 1 at 3). The injuries occurred sometime “between 2013 and 2014,” causing what plaintiff believes to be “a torn tendon or…crushed cartilage in [his] right knee.” Later, in 2020, plaintiff “ripped tendons in [his] right hand,” which he contends is “a result of” his earlier knee injury. He does not explain how the knee injury caused him to rip a tendon in his hand several years later. Due to the hand injury, plaintiff is “having complications writing.” (Docket No. 1 at 4). When he has asked about having an MRI, “Dr. Tippen tells [him] he [does not] believe anything is wrong.” Plaintiff acknowledges receiving x-rays, but says that he has been told that “they don’t have anything to compare them with.” He states that he has “asked for proper medical attention but all [he] was given was pain pills and small things but no surgery to repair [his] knee or [his] right hand.” As a result of his knee and hand injuries, plaintiff seeks to have the Missouri Department of Corrections and Corizon send him to a specialist. (Docket No. 1 at 5). He also requests $1.5 million in damages. Discussion Plaintiff is a self-represented litigant who brings this civil action pursuant to 42 U.S.C. § 1983 , alleging deliberate indifference to his medical needs. Because plaintiff is proceeding in forma pauperis, the Court reviewed his complaint under 28 U.S.C. § 1915 . Based on that review, and for the reasons discussed below, the Court will direct plaintiff to file an amended complaint. A. Deficiencies in Complaint Plaintiff’s complaint is subject to dismissal for three reasons. First, the claim against the Missouri Department of Corrections is barred by the Eleventh Amendment’s grant of sovereign immunity. The Missouri Department of Corrections is a department of the State of Missouri. As such, a claim against it is treated as a claim against the state itself. “The Eleventh Amendment protects States and their arms and instrumentalities from suit in federal court.” Webb v. City of Maplewood, 889 F.3d 483, 485 (8th Cir. 2018) This protection extends to suits for any kind of relief, not merely monetary damages. Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir. 2007) (stating that district court erred in allowing plaintiff to proceed against state university for injunctive relief, and remanding matter to district court for dismissal). Second, as to Corizon Staff, only one person – Dr. Tippen – is named in the complaint. Dr. Tippen is not properly listed as a defendant in the case caption. See Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the parties”). Furthermore, plaintiff does not indicate the capacity in which Dr. Tippen is sued. Thus, the claim against Dr. Tippen is treated as being made in his official capacity only. See Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007). An official capacity claim against an individual is treated as a claim against that individual’s employer. See White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017). Because Dr. Tippen is employed by Corizon, plaintiff must demonstrate Corizon’s liability. However, he has failed to present any facts showing he was harmed due to a Corizon policy, custom, or official action. See Stearns v. Inmate Services Corp., 957 F.3d 902, 906 (8th Cir. 2020) (explaining that the “proper test” for determining whether a corporation acting under color of state law is liable under 42 U.S.C. § 1983 “is whether there is a policy, custom, or action by those who represent…official policy that inflicts injury actionable under § 1983”). Finally, even if the Court treated the claim against Dr. Tippen as being made in his individual capacity, plaintiff has failed to connect Dr. Tippen’s actions to a constitutional violation. See Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006) (explaining that 42 U.S.C. § 1983 liability “requires a causal link to, and direct responsibility for, the deprivation of rights”). At most, plaintiff has established a disagreement between himself and Dr. Tippen over the course of his treatment. Such a disagreement does not amount to a violation of plaintiff’s constitutional rights. See Meuir v. Greene Cty. Jail Emps., 487 F.3d 1115 , 1118-19 (8th Cir. 2007) (“A prisoner’s mere difference of opinion over matters of expert medical judgment or a course of medical treatment fails to rise to the level of a constitutional violation”); and Cejvanovic v. Ludwick, 923 F.3d 503, 507 (8th Cir. 2019) (stating that a “mere disagreement with treatment decisions…does not rise to the level of a constitutional violation”). For all these reasons, plaintiff’s complaint is subject to dismissal. Rather than dismissing outright, however, the Court will give plaintiff the opportunity to file an amended complaint, according to the instructions set forth below. Plaintiff must follow these instructions. B. Amendment Instructions Plaintiff should type or neatly print his amended complaint on the Court’s civil rights form, which will be provided to him. See E.D. Mo. L.R. 2.06(A) (“All actions brought by selfrepresented plaintiffs or petitioners should be filed on Court-provided forms.”). If the amended complaint is handwritten, the writing must be legible. In the “Caption” section of the Courtprovided form, plaintiff should clearly name each and every party he is intending to sue. See Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the parties.”). If there is not enough room in the caption, plaintiff may add additional sheets of paper. However, all the defendants must be clearly listed. Plaintiff should fill out the complaint form in its entirety, and ensure that it is signed. In the “Statement of Claim” section, plaintiff should provide a short and plain statement of the factual allegations supporting his claim. See Fed. R. Civ. P. 8(a). Plaintiff should put each claim into a numbered paragraph, and each paragraph should be “limited as far as practicable to a single set of circumstances.” See Fed. R. Civ. P. 10(b). The amended complaint should only include claims that arise out of the same transaction or occurrence. In other words, plaintiff should only include claims that are related to each other. See Fed. R. Civ. P. 20(a)(2). Alternatively, plaintiff may choose a single defendant and set forth as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a). In structuring his amended complaint, plaintiff should begin by writing the defendant’s name. In separate, numbered paragraphs under that name, plaintiff should write a short and plain statement of the factual allegations supporting his claim against that specific defendant. If plaintiff is suing more than one defendant, he should follow the same procedure for each defendant. Plaintiff must specify whether he intends to sue each defendant in an official capacity, an individual capacity, or both. The failure to sue a defendant in his or her individual capacity may result in the dismissal of that defendant. If plaintiff is suing a defendant in an individual capacity, he is required to allege facts demonstrating the personal responsibility of the defendant for harming him. See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (stating that § 1983 liability “requires a causal link to, and direct responsibility for, the deprivation of rights”). Furthermore, the Court emphasizes that the “Statement of Claim” requires more than “labels and conclusions or a formulaic recitation of the elements of a cause of action.” See Neubauer v. FedEx Corp., 849 F.3d 400, 404 (8th Cir. 2017). If plaintiff is suing multiple defendants, it is important that he establish the responsibility of each separate defendant for harming him. That is, for each defendant, plaintiff must allege facts showing how that particular defendant’s acts or omissions violated his constitutional rights. It is not enough for plaintiff to make general allegations against all the defendants as a group. Rather, plaintiff needs to provide the role of each named defendant in this case, in order that each specific defendant can receive notice of what he or she is accused of doing. See Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (stating that the essential function of a complaint “is to give the opposing party fair notice of the nature and basis or grounds for a claim”). Plaintiff is warned that the filing of an amended complaint completely replaces the original complaint. This means that claims that are not re-alleged in the amended complaint will be deemed abandoned. See In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005) (“It is well-established that an amended complaint supercedes an original complaint and renders the original complaint without legal effect.”). After receiving the amended complaint, the Court will review it pursuant to 28 U.S.C. § 1915 . Plaintiff’s failure to make specific factual allegations against a defendant will result in the dismissal of that defendant. If plaintiff fails to file an amended complaint on a Court-provided form within thirty days in accordance with the instructions set forth herein, the Court will dismiss this action without prejudice and without further notice to plaintiff. C. Motion to Appoint Counsel Plaintiff has filed a motion to appoint counsel. (Docket No. 4). In civil cases, a pro se litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013). Rather, a district court may appoint counsel in a civil case if the court is “convinced that an indigent plaintiff has stated a non-frivolous claim…and where the nature of the litigation is such that plaintiff as well as the court will benefit from the assistance of counsel.” Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether to appoint counsel for an indigent litigant, a court considers relevant factors such as the complexity of the case, the ability of the pro se litigant to investigate the facts, the existence of conflicting testimony, and the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). After reviewing these factors, the Court finds the appointment of counsel is not warranted at this time. As discussed above, plaintiff is being ordered to file an amended complaint. Additionally, neither the factual nor the legal issues in this case appear to be complex. The Court will entertain future motions for appointment of counsel as the case progresses, if appropriate. Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis (Docket No. 2) is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $61.33 within thirty (30) days of the date of this order. Plaintiff is instructed to make his remittance payable to “Clerk, United States District Court,” and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) the statement that the remittance is for an original proceeding. IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (Docket No. 4) is DENIED at this time. IT IS FURTHER ORDERED that the Clerk of Court shall send to plaintiff a copy of the Court’s prisoner civil rights complaint form. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on the Courtprovided form in accordance with the instructions set forth above within thirty (30) days of the date of this order. IT IS FURTHER ORDERED that if plaintiff fails to file an amended complaint on the Court-provided form in accordance with the instructions set forth above within thirty (30) days of the date of this order, the Court will dismiss this action without prejudice and without further notice. IT IS FURTHER ORDERED that upon the filing of plaintiff’s amended complaint, the Court will review it pursuant to 28 U.S.C. § 1915 . Dated this 1st day of November, 2021. /s/ Stephen R. Welby_______________ STEPHEN R. WELBY UNITED STATES MAGISTRATE JUDGE