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Zeigenbein v. Howell

United States District Court, E.D. Missouri, Eastern Division

December 4, 2017

LOUIS NEAL ZEIGENBEIN Plaintiff,
v.
STEVE HOWELL, et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon the motion of plaintiff Louis Neal Zeigenbein, an inmate at Moberly Correctional Center (“MCC”), 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 $26.36. 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 $131.83. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $26.36, which is 20 percent of plaintiff's average monthly deposit.

         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 from a defendant who is immune from such relief. An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992). An action is malicious if it is undertaken for the purpose of harassing the named defendants 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=d826 F.2d 1059 (4th Cir. 1987). A complaint fails to state a claim if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         The Complaint

         Plaintiff filed this § 1983 claim against the following ten employees of Missouri Department of Corrections (“MDOC”) and medical professionals, alleging violations of his constitutional rights: Steve Howell, Plant Manager, Missouri Vocational Enterprises; Eric Jones, Floor Manager, Missouri Vocational Enterprises; Warren Howard, Supervisor, Missouri Vocational Enterprises; Tiffany Breeden, Registered Nurse, South Central Correctional Center (“SCCC”); Mr. Coatney, Investigator; Laurel Davison, Nurse Practitioner, MCC; Dr. Ruane Stamps, MCC; Sergeant Ipoc, Property Room Sergeant, SCCC; Terena Ballinger, Assistant Deputy Warden, SCCC; and John Scott, Assistant Director, MDOC.

         From July 2012 to May 2014, plaintiff was employed as a carpentry helper in the Missouri Vocational Enterprises (“MVE”) program at SCCC in Licking, Missouri. MVE is a program of the Division of Offender Rehabilitative Services within MDOC. MVE provides job training for offenders.[1]

         On April 17, 2014, plaintiff was severely injured working at MVE while cleaning the sanding belt on a Timesaver sanding machine.[2] Two weeks prior to his injury, defendants Eric Jones, Floor Manager at MVE, and Warren Howard, Carpentry Supervisor at MVE, asked plaintiff to operate the Timesaver sanding machine. To clean the belt on the Timesaver, plaintiff was directed by Mr. Howard to override the safety switch and, with the safety door open, clean the Timesaver belt using a sanding belt block cleaner that was inappropriate for the Timesaver machine.

         Plaintiff had used a Timesaver machine before, and told Mr. Howard that there was typically a sanding belt block cleaner installed on the Timesaver machine to clean the sanding belt. Plaintiff states that Mr. Howard said that this block cleaner for the Timesaver was back-ordered, or that he did not want to order it. Instead, Mr. Howard said they were going to use the smaller block cleaner for the disk sander or belt sander to clean the belt on the Timesaver.[3]

         Plaintiff understood the block cleaner for the disk sander was too small to run through the Timesaver. When he questioned Mr. Howard, Howard said they were going to “Open the back door and [override the safety switch] and someone else will turn on the machine in the front.” Plaintiff refused to operate the machine in this manner, and again Mr. Howard directed him to do so. Plaintiff said, “No, you are having me [] do something that goes against what is taught, you do not put your hands near moving belts[.] [T]he warning signs on the machine reads, ‘DO NOT PUT YOUR HANDS NEAR MOVING BELTS AND DO NOT OPERATE MACHINE WITH THE DOOR OPEN.'” Defendant Howard threatened plaintiff that he would do it or he would be sent to “the hole.” Plaintiff states that he did as he was told despite what he had been taught “because I'm in prison.” Plaintiff states that after a few times of cleaning the Timesaver belt this way, Mr. Jones wrote an inter-office communication stating that plaintiff would clean the Timesaver belt against the manufacturer's safety recommendations.

         On April 17, 2014, plaintiff was cleaning the Timesaver belt with the block cleaner from the disk sander, as he was directed by Mr. Howard, and the block cleaner “hit a bad spot in the sanding belt causing [his] left hand to be kicked into the sanding belt pulling [his] fingers with [his] knuckles resting on the rollers and grinding [his] fingers to the bone.” Plaintiff was immediately sent to the medical unit, where Tiffany Breeden, RN, treated his injury with saline solution and gauze. Within hours, he was transferred to a hospital in Houston, Missouri and treated by an emergency room doctor and a hand doctor. The hand doctor transferred plaintiff to St. Mary's Hospital in Jefferson City, Missouri, where plaintiff had surgery within twenty minutes of his arrival.

         An investigator from MDOC, defendant Mr. Coatney, questioned plaintiff while he was in the Transitional Care Unit in Licking, Missouri. Plaintiff states that he told Mr. Coatney that Mr. Jones wrote the inter-office communication and Mr. Howard gave him the directive to clean the belt on the Timesaver by overriding the safety switch in the back of the machine. Mr. Coatney did not speak with Mr. Howard. On May 29, 2014, Mr. Coatney issued plaintiff a conduct violation.

         Plaintiff filed a grievance. Assistant Deputy Warden of SCCC, Terena Ballinger, and Assistant Director of MDOC, John Scott, answered the grievance. They said that the grievance was denied because plaintiff was found guilty and sanctioned for the conduct violation. Plaintiff states Mr. Coatney's investigation report stated that plaintiff purposefully stuck his hand in the Timesaver, causing his own injury. Plaintiff states this conduct violation was issued to cover up the acts of the MVE managers. He was never sanctioned for the conduct violation.

         Plaintiff has had two additional surgeries to his hand since his initial surgery on April 17, 2014. Plaintiff has severe and permanent damage to his hand, including loss of use of fingers, loss of all grip strength, and significant nerve damage. He also suffered injury to his neck in the accident and underwent cervical disc fusion surgery. For relief plaintiff seeks an injunction, $25 million in compensatory damages, and $100 million in punitive damages.

         Discussion

         Plaintiff's complaint alleges seven separate claims of constitutional violations. For purposes of clarity on initial review under 28 U.S.C. § 1915(e)(2), the Court will address ...


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