United States District Court, E.D. Missouri, Southeastern Division
DARREN R. LINDLEY, Plaintiff,
BECKY D. LIZENBEE, et al., Defendants.
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
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).
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.
Standard on Initial Review
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).
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.").
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).
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.
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."
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
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 ...