Henningfeld v. Tippen

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

DONALD J. HENNINGFELD, ) .

Plaintiff, ;

V. No. 1:21-cv-00033-SNLJ

DR. PHILIP TIPPEN, et al.,

_ Defendants. □

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Donald J. Henningfeld 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 $19.90. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed

below, the Court will direct plaintiff to file an amended complaint.

28 USC. § 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 mal 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 for leave to proceed in forma pauperis, plaintiff submitted a copy

of his certified inmate account statement. (Docket No. 5). The account statement shows an average

monthly deposit of $99.50. The Court will therefore assess an initial partial filing fee of $19.90,

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. Jd. 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

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 (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 self-represented litigant who is currently incarcerated at the Eastern Reception,

Diagnostic, and Correctional Center in Bonne Terre, Missouri. At the time relevant to the

complaint, however, he was an inmate at the Southeast Correctional Center. Plaintiff brings this

action pursuant to 42 U.S.C. § 1983. He names as defendants Dr. Philip Tippen, Nurse Practitioner

Nina Hill, Nurse Jackie Merdith, Corizon Health, Inc., Director of Nursing Roxanne Anderson,

and Licensed Practical Nurse B. Lizenbee. Defendants are sued in both their official and individual

capacities. (Docket No. 1 at 2-7). The complaint generally alleges that defendants have been

deliberately indifferent to plaintiff's medical needs.

In his “Statement of Claim,” plaintiff asserts that he had four compressed discs “and needed

urgent medical care.” (Docket No. 1-1 at 2). As a result of these compressed discs, he became

unable to walk and was placed in a wheelchair. According to plaintiff, this happened in the year

2008, and is still ongoing in 2021. Due to his condition, plaintiff had to undergo an emergency

“operation to get a fusion of [his] compressed [discs],” lest he never walk again.

.

Plaintiff broadly alleges that “[the] defendants [have] personally played a part or done or

failed to do” certain things, resulting in deliberate indifference. In particular, he states that they

have “[rJefused to give [him] correct medical attention,” “[r]efused to [prescribe] medications to

fit [his] medical condition,” “[r]efused to give [him his] prescribed medications,” “[r]efused to

provide follow up monitoring of [his] condition and needs,” “[r]efused to give [him] a[n] MRI,”

“[making] false physical assessments of [his] conditions, because of cost,” and ignoring his

“medical and mental needs.” (Docket No. 1-1 at 3). At no point does plaintiff attempt to provide

further explanation, or to connect each of these statements to the action of a specific defendant or

defendants.

As a result of defendants’ alleged deliberate indifference toward his medical needs,

plaintiff asserts that he has suffered pain and “mental torment.” (Docket No. 1 at 9). He is seeking

$10 million in damages.

Discussion

Plaintiff is a self-represented litigant who brings this civil action under 42 U.S.C. § 1983,

alleging deliberate indifference to his medical needs. Because plaintiff is proceeding in forma

pauperis, the Court reviewed his complaint pursuant to 42 U.S.C. § 1983. Based on that review,

and for the reasons discussed below, the Court has determined that plaintiff's case is subject to

dismissal. However, the Court will give plaintiff an opportunity to file an amended complaint.

A. Deficiencies in Complaint

Plaintiffs complaint is deficient in that it fails to state a claim against any of the listed

defendants. First, as to Corizon, plaintiff cannot assert liability against Corizon simply because it

employed the individual defendants. See Smith v. Insley’s Inc., 499 F.3d 875, 880 (8" Cir. 2007)

(“A corporation acting under color of state law cannot be liable on a respondeat superior theory”).

Rather, to support such a claim, 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 (8 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 (8" 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”). Plaintiff has made no attempt to present facts establishing

that he was injured by a Corizon policy, custom, or official action.

Second, as to the official capacity claims against Dr. Tippen, Nurse Practitioner Hill, Nurse

Merdith, Director Anderson, and Licensed Practical Nurse Lizenbee, such claims are treated as

being against Corizon, which is their employer. See White v. Jackson, 865 F.3d 1064, 1075 (8"

Cir 2017) (explaining that in an official capacity claim against an individual, the claim is actually

“against the governmental entity itself”); and Johnson v. Outboard Marine Corp., 172 F.3d 531,

535 (8 Cir. 1999) (explaining that a “suit against a public employee in his or her official capacity

is merely a suit against the public employer”). As noted above, however, plaintiff has presented

no facts to show that Corizon is liable for a constitutional violation.

Third, with regard to the individual capacity claims, plaintiff has not demonstrated the

personal responsibility of defendants Tippen, Hill, Merdith, Anderson, and Lizenbee for harming

him. That is, he has not presented facts as to what each defendant did or did not do to harm him or

violate his constitutional rights. See Mayorga v. Missouri, 442 F.3d 1128, 1132 (8 Cir. 2006)

(explaining that 42 U.S.C. § 1983 liability “requires a causal link to, and direct responsibility for,

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the deprivation of rights”). In point of fact, aside from being listed as defendants, neither Tippen,

Hill, Merdith, Anderson, nor Lizenbee are mentioned in the “Statement of Claim.” By way of

example, plaintiff asserts that he was not given an MRI, yet makes no effort to identify which — if

any — of the five defendants actually denied this treatment.

Finally, plaintiffs allegations, such as they are, amount to a series of conclusions,

unsupported by any facts. For instance, plaintiff states that he was “[rlefused...prescribed

medications to fit [his] medical condition.” Yet he does not present any facts to indicate when this

happened, who refused the medications, what the medications actually were, what the medications

were for, and why the refusal amounted to deliberate indifference. Likewise, plaintiff asserts that

certain unnamed defendants “[r]efused to provide follow up monitoring of [his] condition and

needs,” but does not provide the date this occurred, what kind of monitoring he required, or any

explanation as to what his “condition and needs” were. “While the court must accept allegations

of fact as true...the court is free to ignore legal conclusions, unsupported conclusions, unwarranted

inferences and sweeping legal conclusions cast in the form of factual allegations.” Wiles v. Capitol

Indem. Corp., 280 F.3d 868, 870 (8" Cir. 2002). Here, plaintiff has presented nothing but his

conclusions as to what took place, which is insufficient to state a claim.

For the reasons discussed above, plaintiffs complaint is deficient and subject to dismissal

under 28 U.S.C. § 1915(e)(2)(B). Because plaintiff is a self-represented litigant, however, he will

be given the opportunity to file an amended complaint according to the instructions set forth below.

Plaintiff should carefully read the instructions and follow them in drafting his amended

complaint.

B. Amendment Instructions

Plaintiff should type or neatly print his amended complaint on the Court’s civil rights form,

which will be provided to him. See E.D. Mo. L.R. 2.06(A) (“All actions brought by self-

represented plaintiffs or petitioners should be filed on Court-provided forms”). If the amended

complaint is handwritten, the writing must be legible. . .

In the “Caption” section of the Court-provided form, plaintiff should clearly name each

and every party he is intending to sue. See Fed. R. Civ. P. 10(a) (“The title of the complaint must

name all the parties”). If there is not enough room in the caption, plaintiff may add additional

sheets of paper. However, all the defendants must be clearly listed. Plaintiff should fill out the

complaint form in its entirety, and ensure that it is signed.

In the “Statement of Claim” section, plaintiff should provide a short and plain statement of

the factual allegations supporting his claim. See Fed. R. Civ. P. 8(a). Plaintiff should put each

claim into a numbered paragraph, and each paragraph should be “limited as far as practicable to a

single set of circumstances.” See Fed. R. Civ. P. 10(b).

The amended complaint should only include claims that arise out of the same transaction

or occurrence. In other words, plaintiff should only include claims that are related to each other.

See Fed. R. Civ. P. 20(a)(2). Alternatively, plaintiff may choose a single defendant and set forth

_ as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a).

Plaintiff must specify whether he intends to sue each defendant in an official capacity, an

individual capacity, or both. The failure to sue a defendant in his or her individual capacity may

result in the dismissal of that defendant.

If plaintiff is suing a defendant in an individual capacity, he is required to allege facts

demonstrating the personal responsibility of the defendant for harming him. See Madewell v.

Roberts, 909 F.2d 1203, 1208 (8"" Cir. 1990) (stating that 42 U.S.C. § 1983 liability “requires a

causal link to, and direct responsibility for, the deprivation of rights”). 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 (8" Cir. 2017). For example, it is not sufficient for plaintiff to simply say that he was not

given his “prescribed medications.” Instead, he must allege facts establishing that he had a current

prescription, indicate what that prescription was for, and identify who specifically refused to give

those medications him. —

The Court notes that in his complaint, plaintiff sued multiple defendants, but did not

provide specific allegations against each individual. If plaintiff is suing multiple defendants in the

amended complaint, it is important that he establish the responsibility of each separate defendant

for harming him. That is, for each defendant, plaintiff must allege facts showing how that particular

defendant’s acts or omissions violated his constitutional rights. It is not enough for plaintiff to

make general allegations against all the defendants as a group. Rather, plaintiff needs to provide

the role of each named defendant in this case, in order that each specific defendant can receive

notice of what he or she is accused of doing. See Topchian v. JPMorgan Chase Bank, N.A., 760

F.3d 843, 848 (8" 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”).

To aid plaintiff, the Court advises him that in structuring his amended complaint, he should

begin by writing the defendant’s name. In separate, numbered paragraphs under that name,

plaintiff should write a short and plain statement of the factual allegations supporting his claim

against that particular defendant. If plaintiff is suing more than one defendant, he should follow

the same procedure for each defendant. For example, if plaintiff is suing a doctor or nurse, he

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should write that individual’s name. Beneath that name, plaintiff should provide factual allegations

as to what that doctor or nurse did or did not do to violate his constitutional rights. Those

allegations should include when the actions took place, where they took place, and how those

actions harmed him.

Plaintiff is warned that the filing of an amended complaint completely replaces the

original complaint. This means that claims that are not re-alleged in the amended complaint will

be deemed abandoned. See In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928

(8" Cir. 2005) (“It is well-established that an amended complaint supercedes an original complaint

and renders the original complaint without legal effect’).

After receiving the amended complaint, the Court will review it pursuant to 28 U.S.C. □ □□

1915. Plaintiffs failure to make specific factual allegations against a defendant will result in the

dismissal of that defendant. Furthermore, the failure to follow these instructions may also result in

dismissal. If plaintiff fails to file an amended complaint on a Court-provided form within

thirty (30) days in accordance with the instructions set forth herein, the Court will dismiss

this action without prejudice and without further notice to plaintiff.

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 (8" Cir. 2013). See also Stevens v. Redwing, 146 F.3d 538, 546 (8" Cir. 1998)

(stating that “[a] pro se 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 (8" 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 (8 Cir. 2006).

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

warranted at this time. As explained above, plaintiff's complaint is subject to dismissal, and he is

being ordered to file an amended complaint. Thus, the Court is not convinced that plaintiff has

stated a non-frivolous claim, or that plaintiff or the Court will benefit from the assistance of

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

D. Motion for Substitution of Party

Plaintiff has filed a document with the Court that has been construed as a motion for

substitution of party. (Docket No. 4). In the motion, plaintiff states that he learned that the full

company name of Corizon is actually Corizon Health, Inc., rather than Corizon Health Care

Service L.L.C., and he expresses a desire to correct this mistake. The motion will be denied as

moot, as plaintiff is being ordered to file an amended complaint. He will therefore have the

opportunity to properly identify Corizon, if he chooses to name them as a defendant.

Accordingly,

IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma pauperis

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $19.90

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

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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 appointment of counsel (Docket

No. 3) is DENIED at this time.

IT IS FURTHER ORDERED that plaintiffs motion for substitution of party (Docket No.

4) is DENIED AS MOOT.

IT IS FURTHER ORDERED that the Clerk of Court shall send to plaintiff a copy of the

Court’s prisoner civil rights complaint form.

IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on the Court-

provided form within thirty (30) days of the date of this order, in accordance with the instructions

set forth above.

IT IS FURTHER ORDERED that if plaintiff fails to file an amended complaint on the

Court-provided form within thirty (30) days of the date of this order, in accordance with the

instructions set forth above, this action will be dismissed without prejudice and without further

notice.

IT IS FURTHER ORDERED that upon receipt of plaintiff's amended complaint, the

Court will review it pursuant to 28 U.S.C. § 1915.

Dated this (Hay of Wal ; 202

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SENIOR UNITED STATES DISTRICT JUDGE

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