Howard v. Unknown named CEO

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CLARENCE Z. HOWARD, )

Plaintiff,

V. No. 4:19-CV-2241-JMB

UNKNOWN NAMED CEO, et al.,

Defendants.

MEMORANDUM AND ORDER

This matter is before the Court on the motion of plaintiff Clarence Z. Howard, an inmate

at Missouri Eastern Correctional Center, for leave to commence this civil action without

prepayment of the required filing fee. Having reviewed the motion and the financial information

submitted in support, the Court will grant the motion and assess an initial partial filing fee of

$14.03. See 28 U.S.C. § 1915(b)(1). For the reasons explained below, this case will be dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

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 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 Court each time the amount in the prisoner’s account exceeds $10.00, until the filing

fee is fully paid. Jd.

In support of the instant motion, plaintiff submitted an inmate account statement showing

an average monthly deposit of $70.16. The Court will therefore assess an initial partial filing fee

of $14.03, which is twenty percent of plaintiff's average monthly deposit.

Legal Standard on Initial Review

Under 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).

“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. /d. 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.” Jd. 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.”).

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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

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. See Stone v.

Harry, 364 F.3d 912, 914-15 (8th Cir. 2004).

The Complaint

Plaintiff filed his civil rights complaint pursuant to 42 U.S.C. § 1983 against the following

defendants: Unknown named Director of Nursing at Fulton Reception Diagnostic Center

(“FRDC”); Syed K. Inman, M.D. (Corizon); Unknown Wiggins, M.D (Corizon); Unknown named

Director of Nursing at Northeast Correctional Center (“NECC”); Unknown Gupta, M.D. (NECC);

Unknown Reddy, M.D. (NECC); Unknown named Director of Nursing (Farmington Correctional

Center (“FCC”)); Unknown Srinivasaraghavan, M.D. (FCC); Ann Precythe (Director, Missouri

Department of Corrections (“MoDOC”)); Alana Boyles (Director of Adult Institutions, MoDOC);

Cindy Griffith (Deputy Division Director, MoDOC); Scott O’Kelly (Director of Mental Health,

MoDOC); Unknown named CEO of Corizon Health Services, LLC; Unknown named Corizon

Board of Directors; and Unknown named Medical Director, Supervisor of Corizon. Plaintiff

names all defendants in both their individual and official capacities.

Plaintiff alleges his Eighth Amendment rights were violated when defendants prescribed

him risperidone without disclosing its alleged side effect of increasing a patient’s risk of

developing gynecomastia, which is defined as an enlargement or swelling of breast tissue in males.

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Plaintiff states that he was prescribed risperidone in October 2014 to treat his bipolar disorder. He

was transferred to Missouri Eastern Correctional Center at some point, where he was informed on

March 13, 2018 that risperidone increased his risk of developing gynecomastia. At this time, he

began to become increasingly worried that he might develop gynecomastia, “which ultimately

resulted in full out anxiety.” Plaintiff states that on December 31, 2018, he began having severe

anxiety attacks “as a result of the stress and worry from having been put directly at risk of taking

a medication which potentially caused gynecomastia by defendants.”

For relief, plaintiff seeks actual damages of $2.5 million “because [he] suffer[s] from

mental/psychological injury this will be a lifelong effect on me.” He also seeks $40 million in

punitive damages.

Discussion

The PLRA provides, “No Federal civil action may be brought by a prisoner confined in a

jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody

without a prior showing of physical injury or the commission of a sexual act.” 42 U.S.C. §

1997e(e); see also McAdoo v. Martin, 899 F.3d 521, 525 (8th Cir. 2018) (“We interpret the PLRA

to require more than a de minimis physical injury.”); but see Royal v. Kautzky, 375 F.3d 720, 723

(8th Cir. 2004) (holding prisoners may maintain actions for alleged First Amendment violations

without claiming a physical injury).

Plaintiff has not alleged that he suffered any physical injury as a result of taking

risperidone. He does not allege that he suffers gynecomastia—only that he is anxious that he is at

a higher risk of developing gynecomastia.' He seeks damages only for this anxiety.

1 Also, plaintiff has not alleged that he discontinued taking risperidone after learning of its alleged

side effect of an increased risk in developing gynecomastia.

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Because plaintiff's complaint seeks damages only for mental or emotional suffering, it does

not meet the PLRA’s physical injury requirement, and will be dismissed. See McAdoo, 899 F.3d

at 525; see, e.g., Marcum v. Tallant, No. 4:19-CV-4106, 2019 WL 4396144, *4 (W.D. Ark. Sept.

13, 2019) (finding no physical injury under PLRA where prisoner alleged “as a result of standing

in ankle deep water for hours he was scared he was going to drown, and he was put ‘at risk of

catching any kind of diseases’”); Huffman v. Lacey, No. 4:19-CV-4086, 2019 WL 4280324, *3

(W.D. Ark. Sept. 10, 2019) (finding no physical injury were prisoner alleged he has bad dreams);

Upchurch y. Tillman, No. 4:19-CV-223-JCH, 2019 WL 2357373, *2 (E.D. Mo. Jun. 4, 2019)

(finding the PLRA bars recovery for plaintiff’s mental anguish); Kincade v. Holder, No. 1:18-CV-

285-CDP, 2019 WL 541020, *2 (E.D. Mo. Feb. 11, 2019) (same).

For this reason, having thoroughly reviewed and liberally construed the complaint, the

Court concludes that plaintiffs allegations fail to state a claim upon which relief may be granted

against defendants. The Court will therefore dismiss this case pursuant to 28 U.S.C. §

1915(e)(2)(B) (Gai).

Accordingly,

IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis is

GRANTED. [ECF No. 3]

IT IS FURTHER ORDERED that, within thirty (30) days of the date of this

memorandum and order, plaintiff must pay an initial filing fee of $14.03. Plaintiffis 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) this case number; and (4) the statement that the

remittance is for an original proceeding.

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IT IS FURTHER ORDERED that this case is DISMISSED without prejudice pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii).

IT IS FURTHER ORDERED that plaintiffs Motion to Appoint Counsel is DENIED as

moot. [ECF No. 2]

IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in

good faith.

A separate order yo will accompany this memorandum and order.

Dated this Ab day of September, 2019.

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RONNIE L. WHITE

UNITED STATES DISTRICT JUDGE

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