United States District Court, E.D. Missouri, Northern Division
ANDRE L. FULSON, Plaintiff,
TAMARA ANDERSON, et al., Defendants.
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT
matter is before the Court on review of plaintiff's
amended complaint under 28 U.S.C. § 1915(e). Upon
review, the Court finds that the Clerk should issue process
on several of the defendants.
28 U.S.C. § 1915(e), 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 for relief, a complaint must plead
more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of
action [that are] supported by mere conclusory
statements.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A plaintiff must demonstrate a plausible claim
for relief, which is more than a “mere possibility of
misconduct.” Id. at 679. “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 on its judicial
experience and common sense. Id. at 679.
reviewing a complaint under 28 U.S.C. § 1915(e), the
Court accepts the well-pled facts as true. Furthermore, the
Court liberally construes the allegations.
brings this action under 42 U.S.C. § 1983, the Americans
with Disabilities Act, and state law. Defendants are medical
personnel and state officials at the Northeastern
Correctional Center (“NECC”).
plaintiff arrived at NECC in 2013, the prison doctor assessed
him and gave him a preliminary diagnosis of inflammatory
myopathy based on his blood results. The doctor prescribed a
physical therapy regimen, which included walking outside,
weight lifting, and use of both a treadmill and an elliptical
machine. He followed the regimen for two years. Other
therapies were prescribed to plaintiff, including use of a
CPAP machine and orthopedic shoes.
says several of the defendants were responsible for
terminating his treatment plan, including defendants Tamara
Anderson, Dr. Thomas Pryor, Dr. Suzanne Alt, Terri Chenoweth,
Pasha Allen, James Hurley, Larry Preston, Debra Baker, and
Linda Wiley. He says he has suffered injury as a result of
the lack of treatment. He now requires the use of a
wheelchair, which defendants will not provide to him.
also claims that defendant Larry Allen refused to give him
the proper religious meals in retaliation for filing
grievances against his wife, defendant Pasha Allen.
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 v. Carnahan, 132 F.3d 1234, 1239
(8th Cir. 1997). The Court finds that the complaint states a
plausible claim of deliberate indifference with regard to
defendants Tamara Anderson, Dr. Thomas Pryor, Dr. Suzanne
Alt, Terri Chenoweth, Pasha Allen, James Hurley, Larry
Preston, Debra Baker, Linda Wiley, and Larry Allen. As a
result, it will direct the Clerk to serve these defendants
II of the ADA applies to “public entities.” 42
U.S.C. § 12132. Under 42 U.S.C. § 12131(1),
“The term ‘public entity' means . . . any
State or local government [or] any department, agency,
special purpose district, or other instrumentality of a State
or States or local government.” The term “does
not include individuals.” Alsbrook v. City of
Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir. 1999) (en
banc). A private contractor does not become a “public
entity” under Title II merely by contracting with a
governmental entity to provide governmental services.
Green v. City of New York, 465 F.3d 65, 79 (2nd Cir.
2006). As a result, Title II of the ADA does not impose
liability on any of the defendants in their individual
capacities or any of the Corizon defendants. However, the
Court finds that plaintiff's official-capacity claims
against defendants Chenoweth, Larry Allen, and Hurley should
proceed so that plaintiff can advance his ADA claims.
under § 1983 requires a causal link to, and direct
responsibility for, the alleged deprivation of rights.”
Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.
1990); see Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009) (“Because vicarious liability is inapplicable to
Bivens and § 1983 suits, a plaintiff must plead
that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution.”); Camberos v. Branstad, 73 F.3d
174, 176 (8th Cir. 1995) (“a general responsibility for
supervising the operations of a prison is insufficient to
establish the personal involvement required to support