United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
a prisoner, seeks leave to proceed in forma pauperis in this
civil action under 42 U.S.C. § 1983. Having reviewed
plaintiffs financial information, the Court assesses a
partial initial filing fee of $33.05, which is twenty percent
of his average monthly deposit. See 28 U.S.C. §
1915(b). 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.
Standard on Initial Review
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.
an inmate at Moberly Correctional Center ("MCC"),
brings this civil rights action under 42 U.S.C. § 1983,
Title II of the Americans with Disabilities Act
("ADA"), the Rehabilitation Act ("RA"),
and the Missouri Human Rights Act ("MHRA"),
alleging defendants violated his rights by failing to
accommodate his disability and by inflicting cruel and
unusual punishment upon him. Named as defendants are Carrie
Collins (ADA District Coordinator, Missouri Department of
Corrections ("MDOC")); Lisa Pogue (Assistant Deputy
Warden, MCC and ADA Site Coordinator); Unknown Pollard
(Correctional Officer II, MCC); Unknown Zukerini
(Correctional Officer I, MCC); Unknown Captain (MCC); and Dr.
Ruanne Stamps (Medical Director, MCC).
states the he has been disabled since he was eighteen months
old due to the accidental ingestion of caustic chemicals. As
a result, he has lifelong damage to his mouth, throat, and
esophageal tract. Because of the restriction of plaintiff s
esophagus, loss of teeth, and scar tissue on his mouth,
plaintiff requires a much longer time than an able-bodied
person to masticate his food. He has a doctor's order at
MCC that states he should have thirty minutes to eat at each
meal, otherwise he cannot obtain the necessary nutrition and
is at risk of choking.
states the custody staff in the dining facility at MCC have
refused to honor this doctor's order, and make him throw
away any food that he cannot eat within fifteen minutes, or
less, on some occasions. Plaintiff states that he has lost
thirty pounds since his incarceration. Specifically,
plaintiff states that on October 16, 2017, January 28, 2018,
and February 13, 2018, Correctional Officers Pollard and
Zukerini and an unknown captain, denied plaintiff the right
to eat, even after being shown his lay-in for reasonable
relief, plaintiff seeks an injunction ordering MDOC staff to
abide by the ADA and $40 million in damages.
indifference to serious medical needs of prisoners
constitutes the unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment." Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (quotations and citation
omitted). "This is true whether the indifference is
manifested by prison doctors in their response to the
prisoner's needs or by prison guards in intentionally
denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed."
Id. at 104-05. Plaintiffs claims of violations of
the Eighth Amendment against defendants Unknown Pollard and
Unknown Zukerini survive initial review. Plaintiff has
alleged a serious medical need, namely that his restricted
esophageal tract and scar tissue require him to have extra
time to chew and swallow his food, otherwise he becomes
malnourished and is at risk of choking. Plaintiff alleges
these correctional officers are deliberately disregarding
that serious medical need by not allowing plaintiff enough
time to eat. The Court will issue process on defendants
Pollard and Zukerini.
the Court finds the allegations against defendants Carri
Collins, Lisa Pogue, and Dr. Ruanne Stamps sound in
respondeat superior, the Court will not issue process on
these defendants. See Madewell v. Roberts, 909 F.2d
1203, 1208 (8th Cir. 1990) (liability under § 1983
requires causal link to, and direct responsibility for, the
alleged deprivation of rights); Martin v. Sargent,780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable
under § 1983 where ...