United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of pro se
plaintiff Rubin Rurie Weeks, a prisoner, for leave to
commence this civil action without prepayment of the required
filing fee. For the reasons stated below, the motion will be
denied and this case will be dismissed.
Strikes Rule: 28 U.S.C. § 1915(g)
U.S.C. § 1915(g) limits a prisoner's ability to
obtain in forma pauperis status if he has filed at
least three actions that have been dismissed as frivolous,
malicious, or for failure to state a claim. Section 1915(g)
provides in relevant part:
In no event shall a prisoner bring a civil action ... under
this section if the prisoner has, on three or more prior
occasions, while incarcerated or detained in any facility,
brought an action ... in a court of the United States that
was dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious
28 U.S.C. § 1915(g). Section 1915(g) is commonly known
as the “three strikes” rule, and it has withstood
constitutional challenges. See Higgins v. Carpenter,
258 F.3d 797, 799 (8th Cir. 2001). In forma pauperis
status is not a right, it is a privilege granted by the
Court. Cross v. Gen. Motors Corp., 721 F.2d 1152,
1157 (8th Cir.1983) (“the decision whether to grant or
deny in forma pauperis status is within the sound discretion
of the trial court.”).
Standard on Initial Review
28 U.S.C. § 1915(e)(2), this Court must 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,
inter alia, draw upon judicial experience and common
sense. Id. at 679.
1915(e)(2) also allows this Court to dismiss a duplicative
complaint that raises issues that are directly related to
issues in another pending action brought by the same party.
Aziz v. Burrows, 976 F.2d 1158 (8th Cir. 1992). An
action is duplicative if the parties, issues, and available
relief do not significantly differ between two actions.
I.A. Durbin, Inc. v. Jefferson Nat. Bank, 793 F.2d
1541, 1551 (11th Cir. 1986).
se complaints are to be liberally construed. Estelle
v. Gamble, 429 U.S. 97, 106 (1976). However, they still
must allege sufficient facts to support the claims alleged.
Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir.
2004); see also Martin v. Aubuchon, 623 F.2d 1282,
1286 (8th Cir. 1980) (even pro se complaints are
required to allege facts which, if true, state a claim for
relief as a matter of law). Federal courts are not required
to “assume facts that are not alleged, just because an
additional factual allegation would have formed a stronger
complaint.” Stone, 364 F.3d at 914-15. In
addition, giving a pro se complaint the benefit of a
liberal construction does not mean that procedural rules in
ordinary civil litigation must be interpreted so as to excuse
mistakes by those who proceed without counsel. See McNeil
v. U.S., 508 U.S. 106, 113 (1993).
February 13, 2019, plaintiff filed the instant complaint in
this Court, seeking relief pursuant to 42 U.S.C. § 1983;
the Americans with Disabilities Act, 42 U.S.C. §§
12101 et seq. (“ADA”); and state law.
Plaintiff named as defendants: St. Mary's Hospital; two
doctors employed at the Hospital (Jeff Lehmen and Kevin
Huffman); the risk manager of the Hospital (Julie Henley);
two Hospital security officers (Unknown Flowers and Unknown
Jennings); the Director of the Missouri Department of
Corrections (“MDOC”) (Anne Precythe); the prison
health care (Corizon) Regional Medical Director (Dr. Thomas
Bredeman); and multiple John and “Jone” Doe
defendants. Plaintiff brings suit against defendants in both
their individual and official capacities, except Precythe who
is sued in her official capacity only.
plaintiff's claims arose from events that followed a
spine surgery plaintiff had at St. Mary's Hospital on
February 14, 2017, while he was incarcerated with the MDOC.
In summary, plaintiff claims that MDOC correctional officers
assaulted and used excessive force on him when they
transported him from the hospital back to the prison after
the surgery. According to plaintiff, the Hospital and its
defendant employees (Drs. Lehmen and Huffman, risk manager
Henley, and security officers Flowers and Jennings) knew
about the abuse and did nothing as part of a conspiracy with
Precythe and Bredeman to deprive him of adequate medical care
and to cover up the abuse. Plaintiff also alleges that the
Hospital, risk manager Henley, and security officers Flowers
and Jennings failed to protect him and violated his right to
equal protection. He argues that the failure to protect him,
as a disabled person, violated the ADA. Once back at the
prison, plaintiff alleges that he was denied timely follow-up
medical care and treatment following the spine surgery, in
violation of both the Eighth Amendment and the ADA. Finally,
plaintiff asserts a state law claim of negligence. He seeks
injunctive and monetary relief.
two years before the filing of this suit, on January 27,
2017, plaintiff filed a complaint in this Court against seven
Corizon prison medical staff defendants. See Weeks v.
Birch, et al., No. 1:17-CV-22-AGF (E.D. Mo. Jan. 27,
2017) (hereafter “Weeks I”). The Court
appointed counsel for plaintiff in that matter and
plaintiff's counsel filed the currently pending operative
Second Amended Complaint on April 11, 2018. Weeks I,
ECF No. 98. In that amended complaint, plaintiff names
twenty-three defendants, including two of the same defendants
named in this matter (Precythe and Bredeman). There, as here,
three of plaintiff's claims stem from events that
occurred following his spine surgery in February 2017. In
summary, he alleges defendant MDOC correctional officers used
excessive force on him when transporting him from the
hospital back to the prison following his surgery. He also
asserts that prison medical staff defendants failed to
provide him timely follow-up medical treatment after his
spinal surgery. Finally, he includes a state law ...