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Houston v. McKinney

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

December 17, 2019

DAMON JOSIAH HOUSTON, Plaintiff,
v.
WILLIAM D. MCKINNEY, et al., Defendants.

          MEMORANDUM AND ORDER

          STEPHEN R. CLARK UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the motion of plaintiff Damon Josiah Houston for leave to commence this civil action without prepayment of the required filing fee. (Docket No. 3). Having reviewed the motion and the financial information submitted in support, the Court has determined that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial partial filing fee of $60.31. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court will dismiss plaintiff's complaint without prejudice.

         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 the Court each time the amount in the prisoner's account exceeds $10.00, until the filing fee is fully paid. Id.

         In support of his motion for leave to proceed in forma pauperis, plaintiff has submitted a copy of his certified inmate account statement. (Docket No. 4). The certified inmate account statement shows an average monthly deposit of $301.57. The Court will therefore assess an initial partial filing fee of $60.31, which is 20 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, 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 factual allegation”).

         When 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 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 (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).

         The Complaint

         Plaintiff is a pro se litigant currently incarcerated at the Potosi Correctional Center (PCC) in Mineral Point, Missouri. (Docket No. 1 at 2). He brings this action pursuant to 42 U.S.C. § 1983. Five defendants are listed in the complaint: Dr. William McKinney; Warden Travis Crews; Corizon Health Care; Dr. Carl Doerhoff; and Grievance Officer R. Savage. (Docket No. 1 at 2-4). Defendants are sued in both their individual and official capacities.

         Plaintiff states that on or about March 12, 2018, while at PCC, a growth known as Giant Cell Granuloma began forming on his forehead. (Docket No. 1 at 5). The growth caused him severe migraines. On March 26, 2018, he was seen by Dr. McKinney. (Docket No. 1 at 7). Plaintiff advised Dr. McKinney of the severe headaches he was experiencing, as well as a swelling behind both eyelids. According to plaintiff, Dr. McKinney told him that it was “nothing but a cyst, ” and that he would “drain it” if it got any bigger. At that time, Dr. McKinney did not order a biopsy or send plaintiff to get a CT scan.

         On April 17, 2018, plaintiff saw an eye doctor for the swelling in both his eyelids and the pea-sized growths on his eyelids. The eye doctor told plaintiff that the swelling and growths were “most likely secondary damage from the abnormal growth on the left side of [his] forehead.” On April 23, 2018, plaintiff's headaches were so severe he could not work. He was also suffering blurry vision. He self-declared to receive medical attention. Plaintiff was sent to Washington County Memorial Hospital where he received a CT scan.

         Two days later, plaintiff saw Dr. McKinney, who measured the growth and noticed that it had gotten larger. Plaintiff asserts that Dr. McKinney did not “drain it like he stated he would if it got bigger.” Instead, plaintiff was sent back to his housing unit.

         Plaintiff self-declared to medical on both April 28, 2018 and May 6, 2018, complaining about the growth on his forehead and the pain he was experiencing. On May 7, 2018, he was again seen by Dr. McKinney. Plaintiff states that Dr. McKinney “ignored [his] complaint about the pain.” (Docket No. 1 at 8). However, plaintiff acknowledges that Dr. McKinney told plaintiff that he was “scheduled to see a surgeon.” On May 10, 2018, he was seen by Dr. Doerhoff through TeleMed. During the examination, Dr. Doerhoff told plaintiff that he could not see the knot on plaintiff's head. Dr. Doerhoff also told plaintiff that the droopiness in his face and his swollen eyelids were not secondary effects of the knot on his forehead.

         On May 23, 2018, plaintiff went to Jefferson City and saw Dr. Doerhoff in his office to have a biopsy done. Plaintiff also went to the hospital to have an MRI.

         On May 29, 2018, plaintiff went to University of Missouri Health Care to be assessed for surgery and to receive his biopsy results. The biopsy results were not cancerous. (Docket No. 1 at 9). Plaintiff had surgery to remove the growth on June 7, 2018. (Docket No. 1 at 5). The surgery took place at University of Missouri Health Care. (Docket No. 1 at 9). Following surgery, he was ...


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