United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
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.
U.S.C. § 1915(b)(1)
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.
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).
Standard on Initial Review
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
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).
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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