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Lindley v. Lizenbee

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

September 11, 2019

BECKY D. LIZENBEE, et al., Defendants.



         This matter is before the Court upon review of an amended complaint filed by plaintiff Darren R. Lindley, a prisoner. For the reasons explained below, this case will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).


         Plaintiff commenced this action in this Court on April 1, 2019. Upon initial review of the complaint, the Court determined that plaintiff had failed to state a viable claim for relief because he failed to specify the capacity in which he intended to sue the defendants, and because his allegations were either incoherent or wholly conclusory. The Court gave plaintiff the opportunity to file an amended complaint to cure the deficiencies. In doing so, the Court gave plaintiff clear instructions, specifically cautioning him about the necessity of specifying the capacity in which he sued each defendant, and about the necessity of pleading specific facts explaining how each defendant's actions or omissions violated his rights. Plaintiff has now filed an amended complaint, which the Court reviews pursuant to 28 U.S.C. § 1915(e)(2)(B).

         Legal Standard on Initial Review

         Under 28 U.S.C. § 1915(e)(2)(B), 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). In assessing whether an action is subject to dismissal under 28 U.S.C. § 1915(e)(2)(B), courts may consider materials that are attached to the complaint as exhibits. Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011) (citations omitted), Fed.R.Civ.P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.").

         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 Amended Complaint

         Plaintiff filed the amended complaint pursuant to 42 U.S.C. § 1983 against Dr. Philip E. Tippen, and Nurses Becky Lizenbee, Rebeka Graham, and Nina Hill. All of plaintiff s claims are based upon the removal of a cane and walker from his possession. Plaintiff states he sues Lizenbee and Tippen in their official and individual capacities. He does not indicate the capacity in which he sues Graham and Hill. Attached to the amended complaint, and therefore considered part of the amended complaint for all purposes, are copies of the Informal Resolution Request (IRR), Grievance and Grievance Appeal plaintiff filed regarding the removal of the cane and walker, along with copies of the responses he received. The Court will consider these materials in assessing whether this action is subject to dismissal under § 1915(e)(2)(B). Reynolds, 636 F.3d at 979, Fed.R.Civ.P. 10(c). Plaintiff alleges as follows.

         On or about March 14, 2017 at Southeast Correctional Center (SECC), Lizenbee "removed medical approved walker" without "any known Doctor approval." This led to plaintiff "falling and breaking my left hip." Lizenbee "showed no remorse in her actions with deliberate indifference of removing the Doctor approved medical device." On June 6, 2017, Dr. Tippen "refused to reinstate walker and or cane," and did not intervene when Lizenbee removed the walker. Graham did not "show any remorse towards the numbness or the pins and needles shooting down right leg which is still on going and will not issue any medications to combat the pain and pins and needles." Hill took plaintiffs cane and "placed walker after a unqualified exam which lead to the injury to myself of a fall and breaking of left hip."

         Plaintiff filed an IRR, Grievance, and Grievance Appeal to complain about the removal of the devices. Dr. Tippen and a nurse provided a written response. They wrote:

According to your medical record, you were evaluated for the use of your cane on 3/14/17 by a licensed provider. After a complete evaluation and physical examination, it was determined a wheeled walker would be a more appropriate assistive device for your condition. At that time, you were required to turn in your cane and were issued a wheeled walker. On 3/27/17 you were again evaluated by a different licensed provider for your chronic pain chronic care clinic. After a thorough evaluation and physical examination, your current lay-ins were deemed appropriate for your current condition. On 3/31/17 a nurse observed you using your walker inappropriately and educated you on the proper and safe use of the walker. On 4/4/17, you were again observed by nursing staff using your walker incorrectly. This information was reported to the provider, at which time it was determined that in the best interest of your personal safety, your walker would be removed from your possession. You are currently enrolled in the chronic pain chronic care clinic, therefore you are evaluated at a minimum of every six months by a licensed provider. This evaluation includes determination of appropriate lay-ins based on your current condition.
In conclusion, your current medical treatment is being addressed by a qualified medical professional and you will continue to receive appropriate care/treatment as determined necessary by your provider. You are strongly encouraged to attend all chronic care clinic appointments, as well as all other health care appointments, as your need for ...

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