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Barnett v. Hill

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

May 9, 2019

BRANDON NICHOLAS BARNETT, Plaintiff,
v.
NINA HILL, et al., Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the motion of plaintiff Brandon Nicholas Barnett for leave to commence this civil action without prepayment of the filing fee. (Docket No. 2). Having reviewed the motion, the Court has determined that plaintiff lacks sufficient funds to pay the entire filing fee, and will waive the initial partial filing fee at this time. See 28 U.S.C. § 1915(b)(4). Additionally, for the reasons discussed below, the Court will dismiss plaintiffs official capacity claims and the individual capacity claims against defendants Molly Leija, Philip Tippen, Larry Graham, Jason Lewis, Paula Reed, Bruce Hanebrink, Shaun Butts, and Paula Martin. However, the Court will direct the Clerk of Court to issue process on defendants Nina Hill and Megan Crowe in their individual capacities.

         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 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 $10.00, until the filing fee is fully paid. Id.

         Plaintiff has not submitted an inmate account statement. He has, however, filed a document with the Court entitled "Motion to Produce Certified Copy of Inmate Account." (Docket No. 7). In the motion, plaintiff asserts that he has tried for three months to get an inmate account statement from his institution, but has been unsuccessful. He further states that he is $1, 375.50 in debt to the Department of Corrections. As such, the Court will not require plaintiff to file an initial partial filing fee at this time. See 28 U.S.C. § 1915(b)(4) (stating that a prisoner shall not be prohibited from bringing a civil action for the reason the prisoner has "no means by which to pay the initial partial filing fee"). However, the institution having custody of plaintiff will be directed, whenever the amount in plaintiffs prison account exceeds $10.00, to send monthly payments that equal 20 percent of the funds credited to the account the preceding month to the United States District Court for the Eastern District of Missouri, until the filing fee of $350 is fully paid. See 28 U.S.C. § 1915(b)(2).

         Legal Standard on Initial Review

         Under 28 U.S.C. § 1915(e)(2), 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 under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief, which is more than a "mere possibility of misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "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 upon judicial experience and common sense. Id. at 679. The court must "accept as true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not required to "accept as true any legal conclusion couched as a factual allegation").

         When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A "liberal construction" means that if the essence of an allegation is discernible, the district court should construe the plaintiffs complaint in a way that permits his or her claim to be considered within the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004) (stating that federal courts are not required to "assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint"). In addition, affording 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. United States, 508 U.S. 106, 113 (1993).

         The Complaint

         Plaintiff is currently incarcerated at the Southeast Correctional Center (SECC) in Charleston, Missouri. (Docket No. 1 at 2). He brings this action pursuant to 42 U.S.C. § 1983. His complaint is handwritten on a Court-provided civil rights form. He has attached a number of exhibits to his complaint, and has filed additional supplements (Docket No. 5; Docket No. 8) that provide further factual allegations. These exhibits and supplements will be treated as part of the pleading. See Fed. R. Civ. P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is part of the pleading for all purposes"). Plaintiffs complaint names the following ten defendants: Nurse Practitioner Nina Hill; Nurse Paula Martin; Health Service Administrator Molly Leija; Medical Director Philip Tippen; Charge Nurse Larry Graham; Warden Jason Lewis; Assistant Warden Paula Reed; Functional Unit Manager (FUM) Bruce Hanebrink; Grievance Officer Shaun Butts; and Nurse Megan Crowe. (Docket No. 1 at 2-4). Defendants are sued in both their individual and official capacities.

         Plaintiffs claims involve his contention that defendants have not properly treated his testicular pain and shrinkage. On September 5, 2018, and on three other occasions, plaintiff states that he met with Nurse Martin. (Docket No. 1 at 5). He requested pain medication that could be safety taken with his kidney condition. Plaintiff states that Nurse Martin gave him Motrin and ibuprofen and told him those medications were all he could have. He claims that he was on these medications for two weeks, even though he did not want them. He asserts that the Motrin and ibuprofen made his kidneys hurt, made him vomit blood, and caused blood in his urine. At some point, Nurse Martin referred him to the doctor.

         On September 20, 2018, plaintiff was seen by Nurse Practitioner Hill. (Docket No. 1 at 3). By that time, he states that he had been complaining of testicular pain for a number of months. He advised Nurse Practitioner Hill that he could feel several lumps, and that he was experiencing spasms and cramps of his cremaster muscles, which caused the muscles to contract and compress his testicles. Nurse Practitioner Hill told plaintiff there could be several causes for testicular shrinkage and pain, and ordered a blood test.

         On September 26, 2018, plaintiffs blood was drawn. He next met with Nurse Practitioner Hill on October 11, 2018. At that appointment, Nurse Practitioner Hill advised plaintiff that his labs were good. Plaintiff alleges that Nurse Practitioner Hill told him she did not know how to diagnose his condition. He asked Nurse Practitioner Hill for further testing and to be referred to a urologist. Nurse Practitioner Hill told plaintiff that she would ask Dr. Tippen, but for a while, plaintiff heard nothing more.

         Eventually, plaintiff was seen by a specialist named Dr. Winklemyer. (Docket No. 5 at 1). According to plaintiff, Dr. Winklemyer told him he would be referred to a urologist for an endoscopy. When plaintiff next saw Nurse Practitioner Hill, he told her that Dr. Winklemyer said that he was referring plaintiff to a urologist, and that it was up to Nurse Practitioner Hill to schedule an appointment. Plaintiff alleges that Nurse Practitioner Hill told him that he was not going to be seeing a urologist.

         Plaintiff alleges that he sent over twenty-three letters to Health Service Administrator Leija about his testicle pain and shrinkage and to complain about Nurse Practitioner Hill's handling of his case. He states that she never responded, even though she is "over all medical staff and could correct their actions." Similarly, plaintiff states that he wrote Medical Director Tippen over twenty-three letters and medical service requests (MSR) letting him know that Nurse Practitioner Hill was denying him medical care and did not know how to diagnose his testicular condition.

         Plaintiff accuses Charge Nurse Graham of failing to respond to his request to file a grievance. He states that he filed an informal resolution request (IRR) on September 10, 2018. However, plaintiff did not "sign not resolved" until December 11, 2018, which he asserts is twenty-one days past the forty-day deadline. He alleges that Charge Nurse Graham continues to ignore his request and has done nothing to correct other staff actions.

         Plaintiff asserts that he wrote Warden Lewis over twenty-three letters informing him that defendants Hill, Leija, Tippen, and Graham were denying him adequate medical treatment for testicle pain and shrinkage. He states that he also asked Warden Lewis to refer him to a urologist due to staff members' inability to diagnose him.

         As with Warden Lewis, plaintiff alleges that he sent Assistant Warden Reed over twenty-three letters informing him that defendants Hill, Leija, Tippen, and Graham were denying him adequate medical treatment and did not know how to diagnose his testicular pain and shrinkage. He also states that Assistant Warden Reed did nothing except to write "addressed" on a kite.

         Plaintiff states that he wrote FUM Hanebrink over twenty-three letters complaining that defendants Butts and Graham had not responded to his IRRs. (Docket No. 1 at 6). He claims that FUM Hanebrink has not contacted them or given plaintiff a grievance, thereby prolonging his lack of treatment and making his condition worse. Likewise, plaintiff alleges that defendant Butts is in charge of grievances but has not responded to plaintiffs request for a grievance form, despite writing him over twenty letters.

         Finally, plaintiff claims that he wrote Nurse Crowe over twenty medical service requests in a two-month period. According to plaintiff, Nurse Crowe advised him that Nurse Practitioner Hill had not done anything with regards to plaintiffs request to see a doctor. He also states that Nurse Crowe told him that she could not help him with his testicular pain or shrinkage. He also alleges that he submitted ten medical service requests for which Nurse Crowe failed to see him. (Docket No. 5 at 1).

         Plaintiff is seeking damages in the total amount of $7, 000, 000. (Docket No. 1 at 7). He also requests that the Court order him to be seen by a urologist, order him placed on Ensure shakes, and order him to be medically paroled.

         Discussion

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants have been deliberately indifferent to his medical needs by providing him inadequate medical treatment for his testicular pain and shrinkage. For the reasons discussed below, the Court will dismiss plaintiffs official capacity claims and the individual capacity claims against defendants Molly Leija, Philip Tippen, Larry Graham, Jason Lewis, Paula Reed, Bruce Hanebrink, Shaun Butts, and Paula Martin. ...


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