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Ashley v. McKinney

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

August 21, 2019

FRANKLIN ASHLEY, Plaintiff,
v.
DR. WILLIAM MCKINNEY, et al., Defendants.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon the motion of plaintiff (registration no. 506654), an inmate at Potosi Correctional Center (“PCC”), 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 enough funds to pay the entire filing fee and will assess an initial partial filing fee of $30.82. 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 submitted an affidavit and a certified copy of his prison account statement for the six-month period immediately preceding the submission of his complaint. A review of plaintiff's account indicates an average monthly deposit of $154.08. Accordingly, the Court will assess an initial partial filing fee of $30.82.

         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 Aenough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         To determine whether an action fails to state a claim upon which relief can be granted, the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950-51 (2009). These include “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements.” Id. at 1949. Second, the Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51. This is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 1950. The plaintiff is required to plead facts that show more than the “mere possibility of misconduct.” Id. The Court must review the factual allegations in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. When faced with alternative explanations for the alleged misconduct, the Court may exercise its judgment in determining whether plaintiff's proffered conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.

         The Complaint

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Plaintiff names the following individuals as defendants in this action: William McKinney (Doctor, Corizon, Inc. (“Corizon”)); Diana Larkin (Nurse, Corizon); Connie James (Nurse, Corizon); Loraine Coleman (Nurse, Corizon); Steve Vossick[1] (Nurse, Corizon); Sarah Skaggs (Nurse, Corizon); Cindy Griffith (Warden, PCC); Ernest Jackson (Director Dental Service, Missouri Department of Corrections (“MDOC”)); Jewel Cofield, Director of Operations, MDOC); and T. Bredeman, Medical Director, MDOC). Plaintiff brings this action against the defendants in both their individual and official capacities.

         A. Tooth Pain and Resulting Head Injury

         Plaintiff asserts that he was incarcerated in Temporary Administrative Segregation Confinement (“TASC”) at PCC in May of 2017.[2] He asserts that on May 20, 2017, he began suffering tooth pain and filed a medical service request (“MSR”), requesting that he be seen by a dentist. Plaintiff asserts that he was escorted to the Administrative Segregation “sick-call room” and seen by Nurse Barton[3], who acknowledged that he needed to be seen by a dentist. Plaintiff asserts that he was told PCC did not currently have a dentist, but she gave him some “I-Prin”[4][sic] and sent him back to his cell.

         Plaintiff claims that he went two more weeks without dental attention, and the pain continued to increase. On or about June 3, 2017, he filed a second MSR requesting that he be seen by medical staff. Plaintiff does not state whom he saw, but he claims that an unnamed person told him PCC did not have a dentist and they did not know when one would be hired.

         Plaintiff states that on or about June 20, 2017, the pain had increased severely, he was having trouble sleeping, eating, and hearing out of one ear, and he believed he had developed an infection in his tooth, or an abscess. Thus, he declared a medical emergency once again, asking to see a “dentist/doctor.” Plaintiff claims he was seen by Nurse Skaggs at this time, who told him there was no dentist available. Plaintiff alleges that when he asked Nurse Skaggs to provide him with antibiotics to treat the abscess, Nurse Skaggs said that only a doctor could provide the antibiotics, but she failed to schedule plaintiff with a doctor at that time.

         On July 8, 2017, plaintiff asserts that he once again declared a medical emergency due to loss of sleep, severe pain, and loss of appetite. Plaintiff claims he was told by unnamed nursing staff that he was scheduled to see a dentist on July 12, 2017; however, when that date came, he was not taken to see a dentist.

         Although plaintiff does not provide a date, he claims that he told Warden Cindy Griffith about his delay in receiving dental care and the lack of a dentist on staff at PCC. He claims he told Ms. Griffith about these issues prior to filing an Institutional Resolution Request (“IRR”) and ...


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