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Hudson v. Kelley

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

May 6, 2019

DEON KELLEY, et al., Defendants.



         This matter is before the Court upon the motion of plaintiff Christopher Lee Hudson, an inmate at Phelps County Jail, 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 $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 not submitted a prison account statement. As a result, the Court will require plaintiff to pay an initial partial filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the Court with a certified copy of his prison account statement, the Court should assess an amount "that is reasonable, based on whatever information the court has about the prisoner's finances."). If plaintiff is unable to pay the initial partial filing fee, he must submit a copy of his prison account statement in support of his claim.

         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'd 826 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 brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. He asserts that nurse Deon Kelley at Phelps County Jail delayed proper medical treatment for an injury he suffered to his eardrum, causing a build-up of puss in the eardrum and a loss of hearing in his ear. Plaintiff also alleges that Sheriff Richard Lisenbee, as well as Lieutenant Matt Shultz at the Jail were made aware of the delay in care at some juncture pursuant to his grievances but that the did not see about his condition. Plaintiff brings this action against defendants in their individual capacities only.

         Plaintiff seeks compensatory and punitive damages, as well as injunctive relief.


         The Court will issue process on plaintiffs delay in treatment claim with respect to plaintiffs claims against Nurse Deon Kelley in her individual capacity.

         The Eighth Amendment protects plaintiff from a confinement that involves cruel and unusual punishment through deliberate indifference to his serious medical needs. Deliberate indifference may be demonstrated by prison officials who intentionally deny or delay access to medical care. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).

         To prevail on a deliberate indifference claim, plaintiff must demonstrate that he suffered from an objectively serious medical need, and that defendants actually knew of but deliberately disregarded such need. Dulany v. Carnahan,132 F.3d 1234, 1239 (8th Cir. 1997). A "serious medical need" as "one that has been diagnosed by a physician requiring treatment, or one that is so obvious that even a layperson would easily recognize the necessity for a doctor's attention." Holden v. Hirner,663 F.3d 336, 342 (8th Cir. 2011). In this case, plaintiff alleges that Ms. Kelley knew of his injury to his ear and that although she began to treat the injury with antibiotics and ear drops, when the injury worsened, she did not follow the standard of care recognized by the outside physician. Rather, Ms. Kelley waited to properly care for plaintiffs condition even though it noticeably ...

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