United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on review of plaintiff Erick
Garcia's second amended complaint pursuant to 28 U.S.C.
§ 1915. (Docket No. 14). For the reasons discussed
below, the Court will dismiss plaintiffs second amended
complaint without prejudice.
Standard on Initial Review
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 can be
granted. To state a claim under 42 U.S.C. § 1983, a
plaintiff must demonstrate a plausible claim for relief,
which is more than a "mere possibility of
misconduct." Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009). "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 upon judicial experience and common sense.
Id. at 679. The court must "accept as true the
facts alleged, but not legal conclusions or threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements." Barton v. Taber,
820 F.3d 958, 964 (8th Cir. 2016). See also
Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73
(8th Cir. 2016) (stating that court must accept
factual allegations in complaint as true, but is not required
to "accept as true any legal conclusion couched as a
reviewing a pro se complaint under § 1915(e)(2), the
Court must give it the benefit of a liberal construction.
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 plaintiffs 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 (8thCir.
2004) (stating that federal courts are not required to
"assume facts that are not alleged, just because an
additional factual allegation would have formed a stronger
complaint"). In addition, affording a pro se complaint
the benefit of a liberal construction does not mean that
procedural rules in ordinary civil litigation must be
interpreted so as to excuse mistakes by those who proceed
without counsel. See McNeil v. United States, 508
U.S. 106, 113 (1993).
is currently an inmate at the Northeast Correctional Center
(NECC) in Bowling Green, Missouri. He brings this action
pursuant to 42 U.S.C. § 1983. Plaintiff filed his
original complaint on June 8, 2018, naming Doctors Todd
Richards, John Pope, Unknown Cook, and Unknown Penyugua as
defendants. (Docket No. 1 at 1). According to plaintiff,
defendants Richards and Pope were on the medical staff at
"Cameron Correctional." Meanwhile, defendant Cook
was a physician at Capital Region Physicians, and defendant
Penyugua was on the medical staff at NECC.
original complaint, plaintiff alleged that during the course
of his incarceration, he was subjected to a "system of
deliberate [indifference]" with regard to a chronic
condition in his right shoulder. (Docket No. 1 at 4; Docket
No. 1-1 at 2). Plaintiff stated that he had been misdiagnosed
and allowed to endure pain while receiving treatment that
medical staff knew was not helping. (Docket No. 1 at 4).
September 26, 2018, plaintiff filed a document with the Court
construed as a motion to amend. (Docket No. 6). In the
motion, plaintiff stated that his claim was "improperly
filed" and that the inmate helping him fill out
paperwork did so improperly. The motion was granted, and
plaintiff was given thirty days to file an amended complaint
on a Court-provided form. Plaintiff duly complied with this
order and filed an amended complaint on November 13, 2018.
(Docket No. 9).
amended complaint named the Missouri Department of
Corrections as the sole defendant. (Docket No. 9 at 1).
Plaintiff alleged that in 2013, he discovered that he had a
bone spur and arthritis in his right shoulder. (Docket No. 9
at 5). This was revealed by an x-ray performed at the South
Central Correctional Center in Licking, Missouri. Plaintiff
asserted that his pain became worse following the x-ray. He
also stated that he underwent a CT scan that showed he had a
torn labrum. He further claimed that he had been filing
health service requests for five years, and that his
"doctors in D.O.C." have requested that he see an
orthopedist, but that such requests have been denied.
Plaintiff stated that his pain has continued to worsen, and
that he is experiencing decreased range of motion and muscle
Court ordered plaintiff to file a second amended complaint on
March 25, 2019. (Docket No. 10). In the order, the Court
noted that plaintiffs amended complaint was subject to
dismissal for several reasons. First, to the extent that he
was suing the Missouri Department of Corrections for money
damages, he had failed to state a claim, because a state was
not a "person" under 42 U.S.C. § 1983. To the
extent that plaintiff sought injunctive relief, the Court
stated that plaintiff had failed to demonstrate that his
constitutional rights were violated due to a Missouri
Department of Corrections' policy, custom, or failure to
train. Finally, the Court advised plaintiff that his claims
regarding medical treatment were vague and conclusory and did
not establish that the treatment he received constituted
was directed to file a second amended complaint within thirty
days. The Court provided plaintiff instructions as to how to
do so properly. Plaintiff complied by filing a second amended
complaint on June 3, 2019. (Docket No. 14).
Second Amended Complaint
brings this action pursuant to 42 U.S.C. § 1983. His
second amended complaint names the following defendants:
Missouri Department of Corrections (MODOC) Director Anne L.
Precythe; Warden Chantay Godert; Corizon; Dr. Lauren Cook;
Director Todd A. Richards; Unknown Persons; Unknown Medical
Director; Nurse Dawn Wade; Director of Operations J. Cofield;
Regional Medical Director T. Bredeman; and Unknown