Fleeman v. Corizon ( 2020 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI NORTHERN DIVISION THOMAS FLEEMAN, ) Plaintiff, v. No.2:19-CV-75 SNLJ CORIZON, et al., ) Defendants. MEMORANDUM AND ORDER This matter comes before the Court on the motion of plaintiff Thomas Fleeman for leave to commence this civil action without prepayment of the required filing fee. Having reviewed the motion and the financial affidavit 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 $1.98. See 28 U.S.C. § 1915(b)(1), Additionally, the Court will require plaintiff to file an amended complaint on a Court-provided form within thirty days of the date of this order. 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. Jd. Plaintiff has submitted an affidavit and a certified copy of his prison account statement for the six-month period immediately preceding the submission of his complaint. A review of plaintiff's account indicates an average monthly deposit of $9.91. Accordingly, the Court will assess an initial partial filing fee of $1.98. 28 U.S.C. § 1915 Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. An action is frivolous if “it lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious when it is undertaken for the purpose of harassing litigants and not for the purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987). To determine whether an action fails to state a claim upon which relief can be granted, the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These include “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements.” Jd. at 1949. Second, the Court must determine whether the complaint states a plausible claim for relief. Jd at 1950-51. This is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Jd. at 1950. The plaintiff is required to plead facts that show more than the “mere possibility of misconduct.” Jd The Court must review the factual allegations in the complaint “to determine if they plausibly suggest an entitlement to relief.” Jd. at 1951. When faced with alternative explanations for the alleged misconduct, the Court may exercise its judgment in determining whether plaintiff's proffered conclusion is the most plausible or whether it is more likely that no misconduct occurred. /d. at 1950, 1951-52. Discussion Plaintiff is currently an inmate at Moberly Correctional Center (“MCC”). He filed this action on August 30, 2019 against Dr. Ruanne Stamps, Nurse Andrea Crader and Corizon, Inc. He is suing defendants in their official and individual capacities. Plaintiff's statement of claim is brief. He asserts that he filed an Institutional Resolution Request (“IRR”) on September 28, 2018 “seeking treatment” for Hepatitis C. He claims that he was denied treatment by Nurse Andrew Crader. Plaintiff alleges that he then filed a grievance on November 1, 2018 “seeking treatment” for Hepatitis C and was denied treatment by Doctor Ruanne Stamps on November 30, 2018. He claims that he filed a grievance appeal and it was denied by Dr. Thomas Bredeman, Corizon’s Association Regional Director. Unfortunately, plaintiff does not specify what “treatment” he was seeking for Hepatitis C in his IRR or his grievance and grievance appeals, or if he was, or is, currently receiving treatment by the Missouri Department of Corrections. Plaintiff does state in his complaint that he is currently seeking from the Court a “direct acting antiviral DAA drug” that has a 90% cure rate. However, the Court is unsure whether this was the “treatment” that was requested by plaintiff in his grievance appeal to the Missouri Department of Corrections. Plaintiff seeks damages and injunctive relief in this action. Discussion Plaintiff's allegations are serious and appear to concern an assertion that he has not received treatment for the Hepatitis C virus. However, plaintiff has not signed his complaint,! and as written, plaintiff has failed to indicate what type of treatment he has been receiving for his Hepatitis C from the Missouri Department of Corrections or if he has been denied treatment altogether. To state a claim for medical mistreatment, plaintiff must plead facts sufficient to indicate a deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Camberos v. Branstad, 73 F.3d 174, 175 (8th Cir. 1995). Allegations of mere negligence in giving or failing to supply medical treatment will not suffice. Estelle, 429 U.S. at 106. In order to show deliberate indifference, plaintiff must allege that he suffered objectively serious medical needs and that defendants actually knew of but deliberately disregarded those needs. Dulany vy. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). Mere disagreement with treatment decisions does not rise to the level of a constitutional violation.” Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995). In order to state a claim against Corizon, plaintiff must allege that there was a policy, custom or official action that caused an actionable injury. Sanders v. Sears Roebuck & Co., 984 F.2d 972, 95-76 (8th Cir. 1993). Because plaintiff is proceeding pro se, and due to the seriousness of his allegations, the Court will allow plaintiff to amend his complaint on a court-provided form. The Court will provide instructions for plaintiff to do so. \ Plaintiff did provide an affidavit to the Court on December 27, 2019, indicating that he wished to sign his complaint. Instructions for Amending the Complaint Plaintiff should type or neatly print the amended complaint. The amended complaint must be on the Court-provided form that will be provided to plaintiff. See E.D. Mo. L.R. 45 - 2.06(A) (“All actions brought by pro se plaintiffs or petitioners should be filed on Court- provided forms”). In the “Caption” section of the Court-provided 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”). 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). 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. It is important that plaintiff 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. 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 (8" Cir. 2017). 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. ? Plaintiff should take care to sign his complaint. 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. 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 (8 Cir. 2005) (“It is well-established that an amended complaint supercedes an original complaint and renders the original complaint without legal effect”). 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. Motion to Appoint Counsel Plaintiff has filed a motion to appoint counsel. “A pro se litigant has no statutory or constitutional right to have counsel appointed in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). 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 (8" Cir. 2018). When determining whether to appoint counsel for an indigent litigant, the 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 (8 Cir. 2006). After reviewing these factors, the Court finds that the appointment of counsel is not warranted at this time. Plaintiff has demonstrated, at this point, that he can adequately present his claims to the Court. Additionally, neither the factual nor the legal issues in this case appear to be unduly complex. The Court will entertain future motions for appointment of counsel as the case progresses. Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.98 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 to appoint counsel [Doc. #5] is DENIED at this time. IT IS FURTHER ORDERED that the Clerk of Court shall provide plaintiff with a copy of the Court’s prisoner civil rights form. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on the Court-provided form, in accordance with the instructions set forth above, within thirty (30) days from the date of this order. Plaintiff’s failure to timely comply with this order will result in the dismissal of this case without prejudice and without further notice. IT IS FURTHER ORDERED that upon the filing of the amended complaint, the Court will review the amended complaint pursuant to 28 U.S.C. § 1915. —_ Dated this (#14 day of Vi weary , 2020. STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE