United States District Court, Eastern District of Missouri, Northern Division
FRANKLIN G. ENDICOTT, Plaintiff,
JAMES HURLEY, et al., Defendants.
OPINION, MEMORANDUM AND ORDER
HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.
This matter is before the Court upon the motion of Franklin Endicott (registration no. 157521), an inmate at Northeast Correctional Center, for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that the plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $208.73. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will partially dismiss the complaint and will order the Clerk to issue process or cause process to be issued on the non-frivolous portions of the complaint.
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, until the filing fee is fully paid. Id.
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 $11.33, and an average monthly balance of $1, 043.67. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $208.73, which is 20 percent of plaintiff’s average monthly balance.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must 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.” Id. at 1949. Second, the Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51. This is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 1950. The plaintiff is required to plead facts that show more than the “mere possibility of misconduct.” Id. The Court must review the factual allegations in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id. 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. Id. at 1950, 1951-52.
Plaintiff brings this action under 42 U.S.C. § 1983 against eighteen prison officials and medical personnel at Northeast Correctional Center (“NECC”). Defendants are sued in their individual capacity only. Plaintiff has listed his claims in several categories, under the letters A through G. The Court will address each of his claims in turn.
1. Claim A
In claim A, plaintiff alleges that he was purposefully denied medical care. Plaintiff was playing dodgeball on January 11, 2014, when he felt his left ankle snap. Defendant Dr. Kendis Archer ordered that plaintiff be sent to the emergency room by ambulance. Plaintiff’s ankle was X-rayed at the ER, and he was diagnosed with an avulsion fracture. The ER doctor placed plaintiff’s leg in a “splint cast” and told him he needed to see an orthopedic surgeon immediately for follow up. Plaintiff was transferred back to NECC.
When plaintiff arrived at the prison infirmary, he was seen by defendant Pasha Allen, a nurse. Allen told Archer about plaintiff’s prescriptions from the ER, but she did not tell him about the referral to the orthopedic surgeon. Plaintiff alleges that she deliberately withheld that information from the prison’s doctors because he was involved in a prison riot in 2006. After ten days had passed, plaintiff asked Archer about the referral. Archer found it in the computer and scheduled an appointment.
Plaintiff saw an orthopedic surgeon via teleconference on January 29, 2014. The surgeon told him he did not need surgery, but the doctor also told him that he would need to wear a boot cast for up to six weeks. The surgeon said he would have a boot cast shipped overnight, so it would be there the following day. And the surgeon also told him to use the boot cast to start walking immediately, in order to avoid blood clots.
Plaintiff did not get the boot cast for four days. When he asked the nurses if it was there, nobody had seen it. Finally, after asking again, Pasha Allen gave it to him. Plaintiff asserts that Allen deliberately held the boot cast for four days in order to delay his treatment. He believes this violates his constitutional rights because he could have suffered a blood clot.
Plaintiff filed a grievance regarding Allen’s deliberate delays to his medical care. Plaintiff also complained to her supervisors that she had delayed his medical care when he had surgery for varicose veins in 2010.
On March 19, 2014, defendant Larry Allen, a correctional officer and Pasha Allen’s husband, took plaintiff to administrative segregation because he was allegedly being investigated for gang activities. Plaintiff alleges that Larry Allen was actually retaliating against him because he had filed a grievance about Pasha Allen. Plaintiff was not able to do the exercising that his orthopedic surgeon wanted him to do while he was in administrative segregation.
Plaintiff alleges that defendant Roschell Davis denied his grievance about Pasha Allen in order to “cover up” Pasha Allen’s delay in providing him medical treatment.
Plaintiff has not alleged that he was injured or suffered further harm as a result of the delays in his medical care.
Plaintiff’s First Amendment retaliation claim against Larry Allen states a plausible claim for relief under § 1983. As a result, the Court will ...