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Potter v. Echele

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

April 19, 2018

CHRISTOPHER J. POTTER Plaintiff,
v.
DEBBIE ECHELE, et al. Defendants.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the motion of Christopher J. Potter, an inmate in St. Charles County Jail, for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $1.00. 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 a financial affidavit, stating he has been incarcerated for nearly two years and has no assets. He states the only money he receives is “a little money for commissary.” The Court will require plaintiff to pay an initial partial filing fee of $1.00, an amount that is reasonable based upon the information the Court has about plaintiff's finances. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997).

         28 U.S.C. § 1915(e)

         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 fails to state a claim upon which relief can be granted 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, 547 (2007).

         In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

         The Complaint

         Plaintiff brings his complaint under 42 U.S.C. § 1983 against defendants Debbie Echele (Medical Director, St. Charles County Jail); Jessica Richard (Nurse, St. Charles County Jail); Theresa Martin (Nurse, St. Charles County Jail); Scott A. Lewis (Sheriff, St. Charles County); St. Charles County; Jandi Unknown (Nurse, St. Charles County Jail); and Dr. Loynd (Contract Doctor, St. Charles County Jail).

         The majority of plaintiff's statement of claim concerns the treatment of his stomach ulcers and acid reflux at the St. Charles County Jail from July 5, 2016 to February 8, 2017. Plaintiff states the nurses would only give him Zantac or Prilosec to control this condition. Plaintiff states that he constantly sought to be prescribed Prevacid for his condition, as this was the only medication that he knew to work. Also, plaintiff states his acid reflux was caused by spicy foods, and defendants refused to put him on a restricted bland diet.

         Plaintiff states that he was prescribed Prevacid starting in February 2017, but defendants retaliated against plaintiff calling him a “crybaby” and stating he “whined too much.” He states defendants would give him only one of his twice-daily prescribed doses of Prevacid, and would tell him that they “lost” his second dose. Plaintiff states he was forced to eat only foods that he could tolerate such as pudding, cookies, and fruit, and he began to lose weight and suffer headaches. At the end of December 2017, plaintiff was approved for a bland diet.

         Plaintiff's second medical complaint relates to defendants' failure to treat what plaintiff believes is testicular cancer. On October 16, 2017, plaintiff had an appointment with Dr. Loynd to examine plaintiff's testicle, which plaintiff states was misshapen and swollen. Subsequently, plaintiff was referred to a specialist at St. Joseph's Hospital. Upon examination, the specialist said “the testicle was very firm, indicating a form of cancer, ” and he ordered a urinalysis and an ultrasound. On November 7, 2017, plaintiff was transported to St. Joseph's Hospital for an ultrasound.

         When plaintiff sought the results of the ultrasound, he was sent to medical where Nurse Jandi “appeared to be very nervous and scared.” She told plaintiff that he has a very serious problem with his testicle and that he needed to “wait until [he] get[s] out [of jail] to ‘deal with it' because the jail ‘does not want to pay for such expensive medical treatments.'” When plaintiff asked if he had cancer, Nurse Jandi stated “I can't tell you that” and had the officers take plaintiff back to his unit.

         Plaintiff continued to have extreme pain while urinating and stated that he began to pass blood in his stool. On January 24, 2018, plaintiff was seen by Dr. Loynd. Plaintiff states that Dr. Loynd said that plaintiff's enlarged testicle, bloody stool, and painful urination was not “a serious condition, ” contrary to what Nurse Jandi had said. Dr. Loynd said the procedure to cure the problem was elective, not an emergency. When plaintiff asked if he had cancer, Dr. Loynd “began sweating and looked very nervous and said, ‘I can't tell you because Debbie [Echele, Medical Director, St. Charles County Jail] told me not to tell you because she doesn't want you to sue the jail . . . just wait until you get out to get it corrected.'” Plaintiff states that defendants Debbie Echele, Dr. Loynd, and Nurse Jandi are withholding the results of his ultrasound from him, and failing to treat what he believes is cancer. On March 13, 2018, plaintiff filed a letter to the Court, stating that he had been seen by Dr. Loynd complaining of pain in his back and spine, trouble ...


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