Woodson v. Unknown

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ROBERT EUGENE WOODSON, )

)

Plaintiff, )

)

v. ) No. 4:21-cv-00314-HEA

)

NURSE TARRY UNKNOWN, et al., )

)

Defendants. )

OPINION, MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Robert Eugene Woodson for

leave to commence this civil action without prepayment of the required filing fee. (Docket No. 2).

Having reviewed the motion, the Court has determined that plaintiff lacks sufficient funds to pay

the entire filing fee, and will assess an initial partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1).

Additionally, for the reasons discussed below, the Court will dismiss the official capacity claims

against defendants Tarry Unknown and Bonnie Unknown. However, the Court will direct the Clerk

of Court to issue process on both defendants in their individual capacities as to plaintiff’s claim of

deliberate indifference to his medical needs.

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.

Plaintiff has not submitted a prison account statement as required by 28 U.S.C. §

1915(a)(2). Nevertheless, having reviewed the information contained in the motion for leave to

proceed in forma pauperis, the Court will require plaintiff to pay an initial partial filing fee of

$1.00. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (explaining that when a prisoner

is unable to provide the court with a certified copy of his inmate account statement, the court

should assess an amount “that is reasonable, based on whatever information the court has about

the prisoner’s finances”). If plaintiff is unable to pay the initial partial filing fee, he must submit a

copy of his prison account statement in support of his claim.

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 (8th

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 self-represented litigant who is currently incarcerated at the Farmington

Correctional Center in Farmington, Missouri. He brings this civil action pursuant to 42 U.S.C. §

1983, naming Nurse Tarry Unknown and Nurse Bonnie Unknown as defendants. (Docket No. 1 at

2-3). They are sued in both their official and individual capacities.

In his “Statement of Claim,” plaintiff asserts that on January 12, 2021, his hands were

“slammed and crushed” in a “chuckhole” by a correctional officer1 at the Eastern Reception,

1 This use of force is the subject of a separate lawsuit. See Woodson v. Case, No. 4:21-cv-192-SRC (E.D. Mo. Feb.

11, 2021).

Diagnostic, and Correctional Center in Bonne Terre. (Docket No. 1 at 4). This left him “in pain in

both hands,” with gashes on his “hand and wrist and [knots] and nerves sticking up.”

After receiving his injuries, plaintiff asked for emergency medical attention. A “couple

hours later,” Nurse Tarry came to him. According to plaintiff, Nurse Tarry said, “Oh you,” and

began to walk away. Plaintiff told her that his hand hurt, that he needed help, and that he required

an x-ray. Nurse Tarry turned around and allegedly told him to “wash it off,” and then “walked

off.”

The next day, plaintiff was transferred to the Farmington Correctional Center, where he

again asked for emergency medical attention. Plaintiff was advised that he would be seen by

Corizon staff, but was never seen by anyone before being placed in administrative segregation.

On January 13, 2021, plaintiff saw Nurse Bonnie walking past. He asked Nurse Bonnie for

medical attention, and she told him “she would take care of it.” Nevertheless, Nurse Bonnie “did

not come see [him] or offer any medical help.” Plaintiff alleges that every time he saw Nurse

Bonnie, she would give different excuses or “just ignore [him].”

On January 28, 2021, plaintiff was released from administrative segregation and wrote

asking for medical care. He was seen by a nurse practitioner on February 18, 2021, and was given

an x-ray. The x-ray revealed that plaintiff’s thumb was “broke[en] twice and fingers 4 [and] five

were fractured.” The nurse practitioner placed plaintiff’s hand and thumb into a splint.

Plaintiff notes that he did not receive any medical treatment for over four weeks, even

though he requested such treatment every day. His injuries amount to a thumb broken in two

places, two fractured fingers, and “intensive nerve damage due to lack of medical care.” As a

result, plaintiff is seeking $350,000 in damages. (Docket No. 1 at 5).

Attached to plaintiff’s complaint are two exhibits. The first exhibit consists of two medical

lay-ins indicating that plaintiff has suffered a hand injury. (Docket No. 1-3). The second is a

handwritten grievance in which plaintiff presents the same allegations as appear in the complaint.

(Docket No. 1-4). The Court will treat these attachments as part of the pleadings. 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”). See also Pratt v. Corrections Corp. of America, 124 Fed. Appx. 465, 466 (8th Cir.

2005) (explaining that “the district court was required to consider the allegations not only in

[plaintiff’s] pro se complaint, but also in his motion to amend, his response to defendants’ motion

to dismiss, and the attachments to those pleadings”).

Discussion

Plaintiff is a self-represented litigant who brings this civil action pursuant to 42 U.S.C. §

1983, alleging that Nurse Tarry and Nurse Bonnie were deliberately indifferent to his medical

needs. Because plaintiff is proceeding in forma pauperis, the Court reviewed his complaint under

28 U.S.C. § 1915. Based on that review, and for the reasons discussed below, the Court will dismiss

the official capacity claims against Nurse Tarry and Nurse Bonnie. However, the Court will direct

the Clerk of Court to issue process against both defendants in their individual capacities.

A. Official Capacity Claims

Plaintiff has sued Nurse Tarry and Nurse Bonnie in their official capacities. 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 (8th 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 (8th Cir. 1999). See also Brewington v. Keener, 902 F.3d 796,

800 (8th 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 (8th 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 (8th 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, plaintiff alleges that both Nurse Tarry and Nurse Bonnie are employed by Corizon

Health Care, a private company contracted by the Missouri Department of Corrections to provide

medical services to inmates. As such, the official capacity claims against them are treated as claims

against Corizon itself, their employer. To prevail, plaintiff must establish Corizon’s liability for

the alleged conduct. See Kelly, 813 F.3d at 1075.

“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 (8th 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 (8th Cir. 2006). See also

Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975 (8th 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”); and Stearns

v. Inmate Services Corp., 957 F.3d 902, 906 (8th Cir. 2020) (explaining that the “proper test” for

determining whether a corporation acting under color of state law is liable under 42 U.S.C. § 1983

“is whether there is a policy, custom, or action by those who represent…official policy that inflicts

injury actionable under § 1983”).

In this case, plaintiff has not demonstrated that his constitutional rights were violated due

to a policy, custom, or official action on the part of Corizon. That is, his facts do not indicate that

the actions by Nurse Tarry and Nurse Bonnie are somehow attributable to their employer. For

example, as to the allegation that Nurse Tarry “walked off” and refused plaintiff treatment, there

are no facts showing that Nurse Tarry was following a Corizon “policy” in so acting. Likewise,

plaintiff does not present facts supporting the proposition that Nurse Tarry’s refusal to treat

plaintiff came about as part of an unofficial Corizon custom, or an official action made by a

Corizon official. The same holds true with regard to the allegations against Nurse Bonnie. To the

extent that plaintiff seeks to hold Corizon accountable simply because they employed Nurse Tarry

and Nurse Bonnie, the Court notes that respondeat superior is inapplicable to 42 U.S.C. § 1983

claims.

For the reasons discussed above, plaintiff has not shown that Corizon was responsible for

inflicting an actionable injury upon him. Because he has not demonstrated Corizon’s liability, the

official capacity claims against Nurse Tarry and Nurse Bonnie must be dismissed.

B. Individual Capacity Claims

Plaintiff has also sued Nurse Tarry and Nurse Bonnie in their individual capacities, alleging

deliberate indifference to his medical needs. 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 (8th 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 (8th Cir. 2019). See also Hamner v. Burls, 937 F.3d

1171, 1177 (8th 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 (8th 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 (8th

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 (8th Cir. 2014). As such,

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

v. Roy, 847 F.3d 637, 643 (8th 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 (8th Cir. 2006).

In this case, plaintiff has alleged a serious medical need in that his hand and wrist was

gashed, his thumb broken in two places, and two of his fingers fractured after allegedly being

slammed in a “chuckhole,” or food port. He has also accused two nurses of being deliberately

indifferent to this medical need. Specifically, plaintiff claims that when Nurse Tarry responded to

his request for medical treatment, on the day he was injured, she said “Oh you” and walked away.

Additionally, he states that Nurse Bonnie said that she would take care of him, but never did. When

plaintiff continued to ask Nurse Bonnie for assistance, she either gave him an excuse or ignored

him. Ultimately, plaintiff did not receive any treatment for over a month. The Court must accept

these allegations as true, and make all reasonable inferences in his favor. See Jones v. Douglas

Cty. Sheriff’s Dep’t, 915 F.3d 498, 499 (8th Cir. 2019). As such, plaintiff’s allegations against

Nurse Tarry and Nurse Bonnie are sufficient for purposes of initial review under 28 U.S.C. § 1915.

Therefore, the Clerk of Court will be directed to issue process on Nurse Tarry and Nurse Bonnie

in their individual capacities as to plaintiff’s claim of deliberate indifference to his medical needs.

C. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. (Docket No. 3). In civil cases, a pro se

litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721

F.3d 940, 942 (8th Cir. 2013). 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 pro se litigant to investigate the facts, the existence of conflicting

testimony, and the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cty.

Jail, 437 F.3d 791, 794 (8th Cir. 2006).

After reviewing these factors, the Court finds that the appointment of counsel is not

warranted at this time. Plaintiff has demonstrated, at this point, that he can adequately present his

claims to the Court. Additionally, neither the factual nor the legal issues in this case appear to be

complex. The Court will entertain future motions for appointment of counsel as the case

progresses.

Accordingly,

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

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 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 plaintiff's motion for appointment of counsel (Docket

No. 3) is DENIED at this time.

IT IS FURTHER ORDERED that plaintiff's official capacity claims against defendants

Tarry Unknown and Bonnie Unknown are DISMISSED without prejudice. See 28 U.S.C. §

1915(e)(2)(B). A separate order of partial dismissal will be entered herewith.

IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause process

to issue on defendants Tarry Unknown and Bonnie Unknown in their individual capacities as to

plaintiff's claim of deliberate indifference to his medical needs. Defendants shall be served in

accordance with the service agreement the Court maintains with Corizon Health, Inc.

IT IS FURTHER ORDERED that an appeal of this partial dismissal would not be taken

in good faith.

Dated this 2" day of August, 2021. ip □

HENRY EDWARD AUTREY

UNITED STATES DISTRICT JUDGE

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