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Robison v. Ivy

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

August 6, 2019

DWAYNE ROBISON, Plaintiff,
v.
LISA IVY, et al., Defendants.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the motion of pro se plaintiff Dwayne Robison for leave to commence this action without prepayment of the required filing fee. Having reviewed the motion and the financial information submitted in support, the Court will grant the motion, and assess an initial partial filing fee of $2.33. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, this case will be dismissed without prejudice for failure to state a claim. See 28 U.S.C. § 1915(e)(2).

         Initial Partial Filing Fee

         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 submitted an application to proceed in district court without prepaying fees or costs, and a certified prison account statement. ECF Nos. 2 & 7. According to this financial information, plaintiff receives average monthly deposits of $11.67. The Court finds that plaintiff has insufficient funds in his prison account to pay the entire fee and will therefore assess an initial partial filing fee of $2.33, 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, is malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. 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 draw on its judicial experience and common sense. Id. at 679.

         When reviewing a pro se complaint under 28 U.S.C. § 1915, the Court accepts the well-pled facts as true, White v. Clark, 750 F.2d 721, 722 (8th Cir. 1984), and liberally construes the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007); 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 plaintiff's 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) (refusing to supply additional facts or to construct a legal theory for the pro se plaintiff that assumed facts that had not been pleaded).

         The Complaint[1]

         Plaintiff is currently an inmate at Eastern Reception Diagnostic and Correctional Center (“ERDCC”), but the actions complained of in his complaint occurred while he was incarcerated at Farmington Correctional Center (“FCC”). Plaintiff brings this action under 42 U.S.C. § 1983, alleging violations of his civil rights against medical personnel at FCC for not properly treating his allegedly underweight and rapid-weight-loss medical issues.

         In December 2018, plaintiff submitted multiple health service requests seeking medical attention for low body weight. “Nurse Frank” was unable to find anything wrong with plaintiff, so plaintiff was referred to see a doctor. Dr. Robert Wudel and nurse Dana Jost were also unable to find anything wrong with plaintiff. As a result, some unnamed medical tests were performed. It is unclear what the results of these tests were, but the FCC grievance responses filed by plaintiff concerning this matter indicate that plaintiff's Body Mass. Index (BMI) was found to be within the normal range as of both February 25, 2019, and April 1, 2019. ECF No. 1-1 at 1, 3.

         According to plaintiff, his body weight is not normal. He has never weighed this little in his life and it must be an indicator of organ damage or some serious problem. Plaintiff also states that his bones are showing through his skin. Plaintiff claims his weight on April 25, 2019, was 148 pounds and that this amount is not normal. ECF No. 1 at 4. However, the FCC medical staff have repeatedly informed plaintiff that his weight is within the normal range and there is nothing that they can do for him. Plaintiff also complains of stomach pain but admits that he is taking “a bunch” of medication for this problem. ECF No. 1 at 3-5.

         It is unclear who plaintiff intends to name as defendants in his complaint. In the caption of the complaint, plaintiff lists three defendants: (1) Lisa Ivy (Health Service Administrator); (2) Robert Wudel (Medical Director); and (3) Dana Jost (Nurse Practitioner). Plaintiff does not state in what capacity he brings claims against these defendants. ECF No. 1 at 1. However, in the “Defendants” section of the complaint, plaintiff lists as defendants: (1) “T. Bredeman / Robert Wudel” (Director of Regional Medical Association) and (2) “J. Cofield / Broad of Nursing” (Operations Director). Defendant names these defendants in their official capacities only. Id. at 2-3. The Court will liberally construe the complaint to be naming all five defendants.

         For relief, plaintiff seeks money damages of $780 and “necessary” ...


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