Purcell v. Odem

• Court: District Court, E.D. Missouri
• Decided: June 23, 2020
• Docket: 1:20-cv-00101
• Status: Unknown

Opinion

EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION

SCOTT PURCELL, ) ) Plaintiff, ) ) vs. ) Case No. 1:20-CV-101-JAR ) BABARA ODEM and ) MELISSA PLUNKETT, ) ) Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on the motion of plaintiff Scott Purcell, an inmate at Big Sandy U.S. Penitentiary in Inez, Kentucky, for leave to commence this civil action without prepayment of the required filing fee. (ECF No. 2). Having reviewed the motion and the financial information submitted in support, the Court has determined to grant the motion, and assess an initial partial filing fee of $3.33. Additionally, for the reasons discussed below, the Court will give plaintiff the opportunity to file an amended complaint. 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 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 his account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these monthly payments to the Clerk of Court Id.

In support of the instant motion, plaintiff submitted a copy of his inmate account statement. (ECF No. 5). A review of plaintiff’s account indicates an average monthly deposit of $16.66 and an average monthly balance of $6.57. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $3.33, 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 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).

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 v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even self-represented 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 in order to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993). The Complaint Plaintiff filed his complaint on a court provided form pursuant to 42 U.S.C. § 1983 against Babara Odem, nurse at Ste. Genevieve County Jail, and Melissa Plunkett, nurse at Ste. Genevieve County Sheriff’s Department. Plaintiff brings this action against both defendants in their individual capacities only. At all times relevant to his complaint, plaintiff was incarcerated at Ste.

Genevieve County Jail. Plaintiff alleges that on the evening of August 21, 2019 in K dorm a fellow inmate “came up behind [him] and slugged [him] in the back of the head.” Plaintiff states he “regained consciousness with a nurse holding her hand in front of [his] face asking [him] how many fingers.” Plaintiff was transported to Ste. Genevieve County Emergency Room where he received a CT scan. Plaintiff states that a doctor informed two jail deputies that he had a severe concussion and broken facial bones. The following morning plaintiff was transported to Barnes Jewish Hospital in St. Louis where he saw a group of facial reconstruction doctors. Plaintiff alleges he was to be scheduled for surgery in four to six weeks, but that he “never again saw a doctor” and was released

from Ste. Genevieve County Jail’s custody on December 18, 2019. As a result of the injuries he sustained on August 21, 2019, plaintiff states he suffers from balance problems, nerve damage, and tinnitus. Plaintiff seeks from each defendant $1500 per day diagnosed with severe trauma.

Discussion Plaintiff’s individual capacity claims against defendants Odem and Plunkett for deliberate indifference to his medical needs do not survive § 1915 review. First, to state a claim for failure to provide medical care, plaintiff must allege that (1) he suffered from an objectively serious medical need and (2) defendants knew of, but deliberately disregarded, that need. See Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011). Plaintiff has not described any acts or omissions by either Odem or Plunkett that were sufficiently harmful, cruel or prolonged to support a claim of deliberate indifference. Plaintiff only alleges that when he first regained consciousness an unidentified nurse asked him how many fingers she was holding in front of his face. He then states he was transported to the Ste. Genevieve County Emergency

Room followed by Barnes Jewish Hospital. Plaintiff does not allege that he saw the unidentified nurse again or that she was aware of his medical status or treatment plan after plaintiff was transported to and treated by outside medical professionals. It is also entirely unclear from the complaint that the unidentified nurse was Odem or Plunkett. Because plaintiff has not alleged enough facts from which the Court could find Odem or Plunkett were deliberately indifferent to his serious medical needs, plaintiff’s inadequate medical care claims against them are subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. Second, plaintiff failed to allege facts showing how Odem or Plunkett were directly involved in or personally responsible for specific violations of his constitutional rights. Plaintiff

does not allege facts to support that they refused to treat his injuries or had any authority or involvement in denying him of the facial reconstructive surgery that was allegedly recommended to him by doctors at Barnes Jewish Hospital. “Liability under § 1983 requires a causal link to, and 1208 (8th Cir. 1990). See also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not

cognizable under § 1983 where plaintiff fails to allege defendant was personally involved in or directly responsible for incidents that injured plaintiff). “A federal complaint must contain the ‘who, what, when and where’ of what happened, and each defendant must be linked to a particular action.” Drummer v. Corizon Corr. Health Care, 2016 WL 3971399, at *1 (E.D. Mo. July 25, 2016). Merely listing a defendant in the caption is not sufficient to state a claim against that defendant. See Krych v. Hvass, 83 F. App’x 854, 855 (8th Cir. 2003) (affirming dismissal of self- represented plaintiff’s complaint against defendants who were merely listed as defendants in the complaint, but there were no allegations of constitutional harm against them). Thus, plaintiff’s claims against Odem and Plunkett, in their individual capacities, are subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim.

Order to Amend In consideration of plaintiff’s self-represented status, the Court will allow him to file an amended complaint. Plaintiff is advised that the amended complaint will replace the original. See In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005) (“It is well-established that an amended complaint supersedes an original complaint and renders the original complaint without legal effect”). Plaintiff must type or neatly print the amended complaint on the Court’s prisoner civil rights complaint form, which will be provided to him. See E.D. Mo. L.R. 45 – 2.06(A) (“All actions brought by self-represented plaintiffs or petitioners should be filed on Court-provided forms”).

In the “Caption” section of the complaint form, plaintiff should write the name of the person he intends to sue. See Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the to his claim. Plaintiff must also specify the capacity in which he intends to sue the defendant.

In the “Statement of Claim” section, plaintiff should begin by writing the defendant’s name. In separate, numbered paragraphs under that name, plaintiff should set forth a short and plain statement of the facts that support his claim or claims against that defendant. See Fed. R. Civ. P. 8(a). Each averment must be simple, concise, and direct. See id. Plaintiff must state his claims in numbered paragraphs, and each paragraph should be “limited as far as practicable to a single set of circumstances.” See Fed. R. Civ. P. 10(b). If plaintiff names a single defendant, he may set forth as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a). If plaintiff names more than one defendant, he should only include claims that arise out of the same transaction or occurrence, or simply put, claims that are related to each other. See Fed. R. Civ. P. 20(a)(2).

It is important that plaintiff allege facts explaining how the defendant was personally involved in or directly responsible for harming him. See Madewell, 909 F.2d at 1208. Plaintiff must explain the role of the defendant, so that the defendant will have notice of what he or she is accused of doing or failing to do. See Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (stating that the essential function of a complaint “is to give the opposing party fair notice of the nature and basis or grounds for a claim.”). Furthermore, the Court emphasizes that the “Statement of Claim” requires more than “labels and conclusions or a formulaic recitation of the elements of a cause of action.” See Neubauer v. FedEx Corp., 849 F.3d 400, 404 (8th Cir. 2017). Finally, plaintiff must not try to amend a complaint by filing separate documents. Instead,

he must file a single, comprehensive pleading that sets forth his claims for relief. Plaintiff has filed a motion to appoint counsel. (ECF No. 3). In civil cases, a self-

represented litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013); see also Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (stating that a self-represented litigant “has no statutory or constitutional right to have counsel appointed in a civil case”). Rather, a district court may appoint counsel in a civil case if the court is “convinced that an indigent plaintiff has stated a non-frivolous claim . . . and where the nature of the litigation is such that plaintiff as well as the court will benefit from the assistance of counsel.” Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether to appoint counsel for an indigent litigant, a court considers relevant factors such as the complexity of the case, the ability of the self-represented litigant to investigate the facts, the existence of conflicting testimony, and the ability of the self-represented litigant to present his or her claim.

Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). After considering these factors, the Court finds that the appointment of counsel is unwarranted at this time. Plaintiff has yet to file a complaint that survives initial review, so it cannot be said that he has presented non-frivolous claims. Additionally, this case appears to involve straightforward factual and legal issues, and there is no indication that plaintiff cannot investigate the facts and present his claims to the Court. The Court will therefore deny the motion without prejudice, and will entertain future motions for appointment of counsel, if appropriate, as the case progresses. Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $3.33 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to “Clerk, United States District Court,” and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) the statement that the remittance is for an original proceeding. IT IS FURTHER ORDERED that, within thirty (30) days of the date of this Memorandum and Order, plaintiff shall submit an amended complaint in accordance with the instructions set forth herein. IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff two blank Prisoner Civil Rights Complaint forms. Plaintiff may request additional forms as needed. IT IS FURTHER ORDERED that plaintiff's Motion to Appoint Counsel (ECF No. 3) is DENIED without prejudice. IT IS FURTHER ORDERED that if plaintiff fails to timely comply with this Memorandum and Order, the Court will dismiss this action without prejudice and without further notice. Dated this 23rd day of June, 2020.

polo few JOHN A. UNITED STATES DISTRICT JUDGE

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