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Lindley v. Lizenbee

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

June 5, 2019

BECKY D. LIZENBEE, et al., Defendants.



         This matter is before the Court on the motion of plaintiff Darren R. Lindley, an inmate at Southeast Correctional Center ("SECC"), for leave to commence this civil action without prepayment of the required filing fee. Having reviewed the motion and the financial information submitted in support, the Court has determined to grant the motion, and assess an initial partial filing fee of $3.20. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court will direct plaintiff to file an amended 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 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.

         In support of the instant motion, plaintiff submitted an inmate account statement showing an average monthly deposit of $16.00, and an average monthly balance of $5.18. The Court will therefore assess an initial partial filing fee of $3.20, which is twenty percent of plaintiff s average monthly deposit.

         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 may be granted. An action is frivolous if it "lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon which relief may be granted 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).

         "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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 assume the veracity of well-pleaded facts, but need not accept as true "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. at 678 (citing Twombly, 550 U.S. at 555).

         This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429 U.S. 97, 106 (1976). This means that "if the essence of an allegation is discernible," the court should "construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework." Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even pro se complaints must 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). Federal courts are not required to assume facts that are not alleged, Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules 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 brings this action pursuant to 42 U.S.C. § 1983 against Nurse Practitioners Nina Hill and Rebekah Graham, Nurse Becky D. Lizenbee, and Dr. Philip Tippen. He states he sues the defendants in their individual and official capacities. He claims that the defendants were deliberately indifferent to his serious medical condition while he was incarcerated at Southeast Correctional Center.

         Plaintiffs allegations are either incoherent or wholly conclusory. Regarding Hill and Lizenbee, he first alleges that, on March 14, 2017, Hill "first removed my cane and replaced with walker stating all canes removed by order of Major, which was not true," and that "[t]his all lead to numbness from left knee down to left foot which lead to cause leg to go out and I took a fall and broke my left hip." Next, plaintiff alleges that Lizenbee took away his walker on April 4, 2017, "to which lead to hip being broke. Due to both Nina Hill and Becky D. Lizenbee removing doctor ordered medical device with deliberate indifference. They both deprived me of any medical devices which has caused me to break my hip." Regarding Dr. Tippen, plaintiff alleges "at no time did Dr. Tippen intervene over the numbness in my left leg which he has shown deliberate indifference to my medical condition to which caused my fall and to break my hip." Finally, regarding Graham, plaintiff alleges he saw her "off and on" for complaints and medication renewal, and she took "one dose of my medication away for no reason other than to save money!

         Which shows deliberate indifference towards my pain and suffering!" Attached to plaintiffs complaint are copies of an Informal Resolution Request, grievance, and grievance appeal he filed to complain about the removal of his cane and walker, along with copies of the responses he received. These documents indicate that plaintiff received regular medical attention and assessment of his need for assistive devices.

         As relief, plaintiff seeks compensatory damages from each defendant of $360, 000 per year from March 14, 2017 to the present date, and punitive damages of $25, ...

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