Dace v. Solem

858 F.2d 385, 1988 WL 99300
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 19, 1988
DocketNo. 87-5268
StatusPublished
Cited by15 cases

This text of 858 F.2d 385 (Dace v. Solem) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dace v. Solem, 858 F.2d 385, 1988 WL 99300 (8th Cir. 1988).

Opinion

PER CURIAM.

Troy Dace appeals from the district court’s dismissal of his complaint as frivolous. We reverse and remand for further proceedings.

I. BACKGROUND

Dace, a prisoner at the South Dakota State Penitentiary (Penitentiary), brought this pro se action under 42 U.S.C. § 1983, seeking monetary, declaratory, and injunc-tive relief. Dace was also granted permission to proceed in forma pauperis. He named as defendants the warden and three associate wardens of the Penitentiary, as well as the prison physician and prison psychologist (defendants).

Dace’s complaint contains four claims. In claim one, Dace asserts that he was scheduled for surgery to repair a nasal defect before his incarceration and was denied this surgery after he was imprisoned. This denial of surgery, Dace argues, constitutes a denial of necessary medical treatment in violation of his eighth amendment rights.

[387]*387In claim two, Dace asserts that on April 8, 1986, another inmate struck him on the side of his head with a pipe. He claims that he suffers from a variety of ailments as a result, that he was initially denied adequate treatment, and that the medication eventually prescribed by the prison physician was ineffective. He also asserts that he was given drugs without being told of their possible side effects and that those medications were abruptly terminated.

Dace asserts in claim three that, because he refused to testify against his assailant in state court assault proceedings, he has been verbally abused, threatened, and intimidated by the warden and associate wardens on numerous occasions, and that he has been denied trusty status by the prison classification board. Claim three also alleges that by allowing Dace to be attacked in the shop area of the prison, the defendants failed to provide a properly staffed shop area, and failed to properly train, control and supervise those persons responsible for inmates’ safety in the shop area.

Dace asserts in claim four that the warden and associate wardens conspired to retaliate against him because of his involvement in lawsuits against prison personnel. Dace argues that his medium custody classification was revoked without any reason or prior hearing.

The district court dismissed the complaint as frivolous under 28 U.S.C. § 1915(d), before any of the defendants were served. Counsel appointed for Dace on appeal argues that under the liberal standards governing pro se prisoner complaints, his complaint alleged sufficient facts to state a claim that could entitle him to relief. He asserts that the district court thus abused its discretion in dismissing his complaint. The defendants respond that the district court properly dismissed Dace’s complaint because it was factually and legally insufficient.

II. DISCUSSION

A. Standard of Review

The Seventh Circuit in Williams v. Faulkner, 837 F.2d 304 (7th Cir.1988), recently set out the framework for appellate review of district courts’ dismissals of in forma pauperis litigation:

To ensure that indigents have access to the courts, Congress enacted 28 U.S.C. § 1915 which established a system for in forma pauperis litigation. Congress recognized, however, the danger that without the monetary disincentives to filing suit, the federal courts could be opened to a flood of spurious litigation. To address these competing concerns, Congress gave district courts the authority to dismiss frivolous or malicious in forma pauperis complaints. 28 U.S.C. § 1915(d); * * *. A frivolous complaint is one in which “the petitioner can make no rational argument in law or facts to support his [or her] claim for relief.”

Williams, 837 F.2d at 306 (citations and footnote omitted).

Reviewing the factual allegations in Dace’s complaint, which we must accept as true, Cline v. Herman, 601 F.2d 374, 375-76 (8th Cir.1979) (per curiam), we conclude that the face of his complaint does not show an “insuperable bar to relief” as required before we may dismiss. Munz v. Parr, 758 F.2d 1254, 1258 (8th Cir.1985). Nor, stated another way, is Dace’s complaint irreparably defective. Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir.1982) (per curiam). This is so because, as to each of his claims, Dace has set forth a legally and factually rational argument.

B. Medical Claims

In Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), the Supreme Court held that a prisoner who alleges acts or omissions sufficiently harmful to show deliberate indifference to serious medical needs states a cognizable claim under 42 U.S.C. § 1983. Dace alleges not only that his nasal condition causes pain, but that he was scheduled for surgery to treat the condition before being imprisoned and that penitentiary officials, despite being aware of his condition, have refused to provide him with necessary [388]*388medical treatment. Because Dace’s complaint was dismissed before discovery was had, there is no way to assess the seriousness of Dace’s condition or the necessity of treatment.

The Second Circuit reversed a district court’s dismissal of a similar claim in Corby v. Conboy, 457 F.2d 251, 254 (2d Cir.1972), a case which was quoted and cited with approval in Jones v. Lockhart, 484 F.2d 1192, 1194 (8th Cir.1973) (per curiam). As Dace points out, this court has reversed and remanded dismissals of prisoners’ claims that were less serious than refusal to allow surgery scheduled before imprisonment. See, e.g., Mullen v. Smith, 738 F.2d 317, 318 (8th Cir.1984) (per curiam) (head injury untreated for four hours, then Valium given to prisoner); Cummings v. Roberts, 628 F.2d 1065, 1067-68 (8th Cir.1980) (back injury untreated for three days). We therefore conclude that Dace should be given a “chance to develop his case to the point at which the courts can determine whether it has merit.” East v. Lemons, 768 F.2d 1000

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Bluebook (online)
858 F.2d 385, 1988 WL 99300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dace-v-solem-ca8-1988.