Hardman v. Corizon Medical Services

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

GARY HARDMAN, )

Plaintiff,

V. No. 1:19-cv-00209-JMB

CORIZON MEDICAL SERVICES, et al.,

)

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Gary Hardman for leave to

commence this civil action without prepayment of the required filing fee. (Docket No. 2). 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 $16.93. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court

will dismiss plaintiff's complaint for failure to state a claim.

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

until the filing fee is fully paid. Jd.

In support of his motion to proceed in forma pauperis, plaintiff has submitted a certified

inmate account statement. (Docket No. 6). The account statement shows an average monthly

deposit of $84.64. The Court will therefore assess an initial partial filing fee of $16.93, 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.” Jd. 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. /d. 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 (8"" Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73

(8"" 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

plaintiffs complaint in a way that permits his or her claim to be considered within the proper legal

framework. Solomon y. Petray, 795 F.3d 777, 787 (8" 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 (8" Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8"

Cir. 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 Southeast Correctional Center

(SECC) in Charleston, Missouri. He brings this action pursuant to 42 U.S.C. § 1983. The complaint

names Corizon Medical Services (Corizon) and Nurse Practitioner Nina Hill as defendants.

(Docket No. 1 at 2-3). Nurse Practitioner Hill is sued in both her individual and official capacities.

(Docket No. 1 at 3).

Plaintiff states that while an inmate at Crossroads Correctional Center (CRCC), he was

assaulted in 2009 and 2011. (Docket No. 1 at 3). As a result of those assaults, he received injuries

to his head and neck, a “cracked skull,” and a broken nose. Medical staff at CRCC diagnosed him

with chronic migraine headaches and severe neck pain.

On July 11, 2013, plaintiff was transferred from CRCC to SECC, where he continued to

receive medication that had been prescribed for his pain. However, on August 4, 2014, plaintiff

states that he was examined by Corizon staff at SECC. (Docket No. 1 at 6). Following this

examination, plaintiff asserts that he was “removed from all pain medication.” Plaintiff states that

this resulted in “severe and excruciating [chronic] migraine headaches several times a day.” He

further states that he suffered pain in his neck that kept him from performing everyday tasks, and

which made it hard to sleep.

Plaintiff submitted medical service requests (MSRs) on November 13, 2014, November

16, 2014, and January 16, 2015, complaining of chronic migraine headaches, neck pain, and an

inability to sleep due to his pain.

Plaintiff subsequently saw a Corizon nurse for a conference, at which time he was advised

that he was being referred to a doctor. He states that Corizon’s “standard operating procedure”

requires an examination by a medical professional within fourteen days of filing an MSR. Plaintiff

notes that this did not occur.

On February 4, 2015, plaintiff filed an informal resolution request (IRR) outlining his

complaints. (Docket No. 1 at 4). In the IRR, plaintiff contends that he “was removed from [his]

previously prescribed pain medications...and several months later was placed on a different, less

costly, pain medication.” He states that this less-costly medication did not alleviate his pain. As

such, he claims that Corizon staff at SECC were deliberately indifferent to his medical needs and

were “more concerned with the cost of [his] medical treatment” than in dealing with his condition.

On March 3, 2015, plaintiff was examined by a Corizon doctor and prescribed 30mg

Cymbalta and 600mg Motrin. (Docket No. 1 at 4, 6). Plaintiff claims that the prescribed medication

does not “alleviate any pain and suffering,” and that he has “repeatedly” told this to Corizon staff.

(Docket No. 1 at 4).

Plaintiff submits that the Corizon staff acted on the basis of a “monetary decision versus

a medical decision,” in order to save Corizon’s “bottom line.” He further claims that 98% of

offenders at SECC were taken off their costly pain medications or prescribed cheaper, less

effective alternatives. Plaintiff alleges that “Corizon maintains a policy, practice or custom of

deliberate indifference...by denying or delaying medical treatment and referral to appropriate

specialists[,] and failing to timely administer vital medication to inmates.” (Docket No. | at 5).

Plaintiff states that Nurse Practitioner Hill is his medical provider, and that she has

“provided ineffective medication, delayed/denied proper medical treatment, and displayed

deliberate indifference” to his medical needs. (Docket No. 1 at 4). Specifically, plaintiff asserts

that Nurse Practitioner Hill decreased his pain medication. He also states that Nurse Practitioner

Hill advised him that he was in “[too] good of shape to be in pain,” even though plaintiff insists

that his x-rays at SECC “clearly show a [vertebra] out in [his] spine/neck.” Plaintiff further accuses

Nurse Practitioner Hill of demonstrating deliberate indifference by refusing to send him to see a

specialist.

Attached to plaintiff's complaint is an IRR, two grievances, two grievance responses, two

grievance appeals, and two grievance appeal responses. These exhibits will be treated as part of

the pleadings.!

Plaintiff states that as a result of defendants’ actions, he has suffered head and neck injuries.

(Docket No. | at 6). He requests an order from the Court to send him to see an outside physician.

(Docket No. | at 7). He further seeks $5,000,000 in damages.

Discussion

Plaintiff brings this pro se civil action pursuant to 42 U.S.C. § 1983, alleging that Corizon

and Nurse Practitioner Hill were deliberately indifferent to his medical needs. For the reasons

discussed below, this action must be dismissed for failure to state a claim.

| See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is part of the pleading for

all purposes”).

A. Corizon

“A corporation acting under color of state law cannot be liable on a respondeat superior

theory.” Smith v. Insley’s Inc., 499 F.3d 875, 880 (8"" Cir. 2007). Rather, to support a claim against

such a corporation, the plaintiff “must show that there was a policy, custom, or official action that

inflicted an actionable injury.” Johnson v. Hamilton, 452 F.3d 967, 973 (8" Cir. 2006). See also

Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975 □□ Cir. 1993) (stating that a corporation

acting under color of state law will only be held liable where “there is a policy, custom or action

by those who represent official policy that inflicts injury actionable under § 1983”).

Here, plaintiff states that Corizon “maintains a policy, practice or custom of deliberate

indifference.” This allegation does nothing more than recite the elements of a cause of action, and

provides a legal conclusion without any factual support. Such pleading is not sufficient to state a

claim. See Hamilton v. Palm, 621 F.3d 816, 817-18 (8" Cir. 2010) (explaining that to state a cause

of action, a “pleading that merely pleads labels and conclusions, or a formulaic recitation of the

elements of a cause of action, or naked assertions devoid of factual enhancement will not suffice”).

That is, there are no facts to sustain the proposition that plaintiff was injured due to a policy,

custom, or official action on the part of Corizon. Thus, this allegation fails to state a claim and

must be dismissed.

Plaintiff also contends that Corizon changed his pain medication based on cost. He further

“submit[s]” that Corizon makes medical decisions for “98% of offenders housed at SECC” based

on the costliness of medications. Again, as above, plaintiff provides no factual support for this

contention. Rather, the allegation amounts to his belief that he was prescribed his current

medications over his past medications based on price. The Court “is free to ignore legal

conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions

cast in the form of factual allegations.” See Wiles v. Capitol Indem. Corp., 280 F.3d 868, 870 (8"

Cir. 2002). Moreover, plaintiff is required to provide factual allegations sufficient “to raise a right

to relief above the speculative level.” See Torti v. Hoag, 868 F.3d 666, 671 (8" Cir. 2017).

Plaintiff's assertion that Corizon is basing his treatment on financial considerations amounts to an

unsupported conclusion that requires the Court to speculate as to his right to relief. Therefore, this

allegation fails to state a claim and must be dismissed.

B. Official Capacity Claim Against Defendant Hill

In an official capacity claim against an individual, the claim is actually “against the

governmental entity itself.” See White v. Jackson, 865 F.3d 1064, 1075 (8" Cir. 2017). Thus, a

“suit against a public employee in his or her official capacity is merely a suit against the public

employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8 Cir. 1999). See also

Brewington v. Keener, 902 F.3d 796, 800 (8 Cir. 2018) (explaining that official capacity suit

against sheriff and his deputy “must be treated as a suit against the County”); Kelly v. City of

Omaha, Neb., 813 F.3d 1070, 1075 (8" Cir. 2016) (stating that a “plaintiff who sues public

employees in their official, rather than individual, capacities sues only the public employer’’); and

Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8" Cir. 2006) (stating that a “suit against a public

official in his official capacity is actually a suit against the entity for which the official is an agent’’).

Here, Nurse Practitioner Hill is alleged to be an employee of Corizon. Accordingly,

plaintiff's official capacity claim against Hill is actually a claim against Corizon itself. In order to

prevail on an official capacity claim, plaintiff must establish the governmental entity’s liability for

the alleged conduct. See Kelly, 813 F.3d at 1075. As discussed above, however, plaintiff has failed

to state a claim against Corizon. Therefore, plaintiff's official capacity claim against Nurse

Practitioner Hill must be dismissed.

C. Individual Capacity Claim Against Nurse Practitioner Hill

Under the Eighth Amendment, the government has an obligation to provide medical care

to those whom it is punishing by incarceration. Estelle v. Gamble, 429 U.S. 97, 103 (1976). To

demonstrate constitutionally inadequate medical care, the inmate must show that a prison official’s

conduct amounted to deliberate indifference. Dulany v. Carnahan, 132 F.3d 1234, 1237-38 (8"

Cir. 1997).

In order to establish deliberate indifference, a plaintiff must prove that he suffered from an

objectively serious medical need, and that prison officials actually knew of and disregarded that

need. Roberts v. Kopel, 917 F.3d 1039, 1042 (8" Cir. 2019). See also Hamner v. Burls, 937 F.3d

1171, 1177 (8" Cir. 2019). “A serious medical need is one that has been diagnosed by a physician

as requiring treatment, or one that is so obvious that even a layperson would easily recognize the

necessity for a doctor’s attention.” Coleman v. Rahija, 114 F.3d 778, 784 (8" Cir. 1997). Deliberate

indifference can include the intentional denial or delay of access to medical care, or the intentional

interference with treatment or prescribed medication. Vaughn v. Lacey, 49 F.3d 1344, 1346 (git

Cir. 1995).

To prevail under this standard, an inmate must demonstrate that a prison health care

provider’s actions were “so inappropriate as to evidence intentional maltreatment or a refusal to

provide essential care.” Jackson v. Buckman, 756 F.3d 1060, 1066 (8" Cir. 2014). As such,

“deliberate indifference requires a highly culpable state of mind approaching actual intent.” Kulkay

v. Roy, 847 F.3d 637, 643 (8" Cir. 2017). Thus, a showing of deliberate indifference requires more

than a mere disagreement with treatment decisions and is greater than gross negligence. Gibson v.

Weber, 433 F.3d 642, 646 (8" Cir. 2006).

Here, plaintiff states that Nurse Practitioner Hill is his medical provider. He claims she

“has provided ineffective medication, delayed/denied proper medical treatment, and displayed

deliberate indifference.” In support of this contention, plaintiff alleges that Nurse Practitioner Hill

decreased his pain medication, and told him he was in too good of shape to be in pain. He further

alleges that she failed to send him to see a specialist.

Plaintiff's factual allegations fail to state a claim of deliberate indifference. There is no

indication whatsoever that Nurse Practitioner Hill was responsible for any delay in plaintiff

receiving treatment when he transferred to SECC. Plaintiff also fails to establish that Nurse

Practitioner Hill denied him care. To the contrary, he acknowledges being seen by Nurse

Practitioner Hill, and being treated by her. Specifically, plaintiff notes that he has been prescribed

Cymbalta, Motrin, Niacin, Gabapentin, and Amitriptyline. Furthermore, the attachments that

plaintiff has included with his complaint also state that he is being seen by healthcare professionals

on a regular basis, and that he is prescribed medication for pain management. In particular, the

offender grievance appeal response that is attached to the complaint notes that plaintiff was

assessed by the chronic care clinic for his pain, and that he is seen at least every six months.

(Docket No. 1 at 25).

The crux of plaintiff's complaint is that the medication is not working. In particular, he

accuses Nurse Practitioner Hill of decreasing his pain medication and not sending him to see a

specialist. This allegation, however, amounts to a disagreement with a treatment decision, and does

not constitute deliberate indifference. See Cejvanovic v. Ludwick, 923 F.3d 503, 507 (8" Cir. 2019)

(stating that a “mere disagreement with treatment decisions...does not rise to the level of a

constitutional violation”); and Meuir v. Greene Cty. Jail Emps., 487 F.3d 1115, 1118-19 (8"" Cir.

2007) (stating that “[a] prisoner’s mere difference of opinion over matters of expert medical

judgment or a course of medical treatment fails to rise to the level of a constitutional violation”).

See also Johnson v. Leonard, 929 F.3d 569, 576 (8 Cir. 2019) (stating that a prisoner’s

disagreement with medical staff with the decision to offer him over-the-counter medications, rather

than prescription medication, does not constitute deliberate indifference). The Court also notes that

the grievance response plaintiff has attached to his complaint states that plaintiff is being seen by

the chronic care pain clinic; that plaintiff received a second opinion for his headaches and neck

pain; that he was given an x-ray; and that there was no necessity for plaintiff to see a specialist.

(Docket No. 1 at 23).

As noted above, to demonstrate deliberate indifference, plaintiff must show that Nurse

Practitioner Hill’s actions were “so inappropriate as to evidence intentional maltreatment or a

refusal to provide essential care.” See Jackson, 756 F.3d at 1066. There must be facts showing that

Nurse Practitioner Hill acted with a mental state “akin to criminal recklessness.” A.H. v. St. Louis

Cty., Missouri, 891 F.3d 721, 726 (8" Cir. 2018). Plaintiff's allegations do not indicate intentional

maltreatment or a refusal to provide essential care. Instead, the allegations show that plaintiff is

being treated, but that he does not agree with the medications or dosages that he is receiving. This

is not sufficient to state a constitutional violation. Therefore, plaintiff's individual capacity claim

against Nurse Practitioner Hill must be dismissed.

D. Motion for Extension of Time to File Account Statement

Plaintiff has filed a motion for extension of time in which to file a certified copy of his

inmate account statement. (Docket No. 4). Subsequent to the motion, plaintiff submitted an

account statement to the Court. Therefore, the motion will be denied as moot.

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E. Motion for Appointment of Counsel

Plaintiff has filed a motion for appointment of counsel. (Docket No. 5). The motion will

be denied as moot as this action is being dismissed for failure to state a claim. See 28 U.S.C. §

1915(e)(2)(B).

F. Motion for Preliminary Injunction and Temporary Restraining Order

Plaintiff has filed a motion for preliminary injunction and temporary restraining order.

(Docket No. 7). In the motion, plaintiff states that he is in extreme pain and spends most of his

time in his bunk. He has trouble sitting in a chair for extended periods, and can no longer exercise.

Plaintiff states that he is in fear of his life and the pain is causing him irreparable harm.

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

v. Nat. Res. Def. Council, Inc., 557 U.S. 7, 27 (2008). In determining whether to grant a preliminary

injunction, a district court applies “‘a flexible consideration of (1) the threat of irreparable harm to

the moving party; (2) balancing this harm with any injury an injunction would inflict on other

interested parties; (3) the probability that the moving party would succeed on the merits; and (4)

the effect on the public interest.” St. Louis Effort for AIDS v. Huff, 782 F.3d 1016, 1021 (8" Cir.

2015).

In the prison context, a request for injunctive relief must always be viewed with great

caution because “judicial restraint is especially called for in dealing with the complex and

intractable problems of prison administration.” Goff v. Harper, 60 F.3d 518, 520 (8" Cir. 1995).

For an injunction to issue, “a right must be violated” and the court must determine whether “a

cognizable danger of future violation exists and that danger must be more than a mere possibility.”

Id. at 521. Regarding the issue of whether a situation is ripe for injunctive relief, the Eighth Circuit

has noted that courts “should not get involved unless either a constitutional violation has already

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occurred or the threat of such a violation is both real and immediate.” Jd. The burden of proving

that a preliminary injunction should be issued rests with the party seeking injunctive relief. Mgmt.

Registry, Inc. v. A.W. Cos., Inc., 920 F.3d 1181, 1183 (8"" Cir. 2019).

Here, plaintiff has not shown that he is entitled to a preliminary injunction or a temporary

restraining order. In particular, he has not demonstrated a likelihood of success on the merits. As

explained above, plaintiff's complaint fails to state a claim of deliberate indifference. While his

motion provides a great deal of detail on the pain he is suffering, he has not established that this

pain is the result of a constitutional violation on the part of defendants. Indeed, there are no

additional factual allegations against defendants in the motion at all.

Deliberate indifference requires a showing that defendants’ actions were “so

inappropriate as to evidence intentional maltreatment or a refusal to provide essential care.”

Jackson, 756 F.3d at 1066. In other words, “deliberate indifference requires a highly culpable state

of mind approaching actual intent.” Kulkay, 847 F.3d at 643. Plaintiff's facts are insufficient to

state a claim under this standard. Plaintiff acknowledges that he has been treated for his pain, and

prescribed a number of medications. Moreover, the attachments to the complaint state that he is

being treated for his chronic pain, and plaintiff does not allege otherwise. While plaintiff may

disagree with the course of treatment he has been prescribed, he has not presented facts showing

that he has been denied care, or that the care he has received evinces intentional maltreatment.

Therefore, the motion for preliminary injunction and temporary restraining order will be denied.

Accordingly,

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

(Docket No. 2) is GRANTED.

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IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $16.93

within twenty-one (21) 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 plaintiffs motion for an extension of time to file his

inmate account statement (Docket No. 4) is DENIED AS MOOT.

IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (Docket

No. 5) is DENIED AS MOOT.

IT IS FURTHER ORDERED that plaintiff's motion for preliminary injunction and

temporary restraining order (Docket No. 7) is DENIED.

IT IS FURTHER ORDERED that this action is DISMISSED without prejudice for

failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B). A separate order of dismissal will be entered

herewith.

IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in

good faith.

Dated this Mt of fal idiey- 2020.

Vpsrinie yl Lee

ONNIE L. WHITE -

UNITED STATES DISTRICT JUDGE

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