Blue v. Dr. Tippen

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CARLOS R. BLUE, )

)

Plaintiff, )

)

v. ) No. 4:21-cv-00689-SRW

)

DEPARTMENT OF CORRECTIONS/ )

CORIZON STAFF, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Carlos R. Blue 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 $61.33. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court

will order plaintiff to file an amended complaint on a Court form.

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. Id.

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

copy of his certified inmate account statement. (Docket No. 7). The account statement shows an

average monthly deposit of $306.66. The Court will therefore assess an initial partial filing fee of

$61.33, 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 can be granted. To

state a claim, 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 28 U.S.C. § 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 Eastern Reception,

Diagnostic and Correctional Center in Bonne Terre, Missouri. He brings this civil action pursuant

to 42 U.S.C. § 1983, naming the Missouri Department of Corrections and Corizon Staff as

defendants. (Docket No. 1 at 2). The case arises out of defendants’ alleged deliberate indifference

to plaintiff’s medical needs.

In his “Statement of Claim,” plaintiff asserts that he “injured [his] right knee playing

basketball” while at the Southeast Correctional Center. (Docket No. 1 at 3). The injuries occurred

sometime “between 2013 and 2014,” causing what plaintiff believes to be “a torn tendon

or…crushed cartilage in [his] right knee.” Later, in 2020, plaintiff “ripped tendons in [his] right

hand,” which he contends is “a result of” his earlier knee injury. He does not explain how the knee

injury caused him to rip a tendon in his hand several years later.

Due to the hand injury, plaintiff is “having complications writing.” (Docket No. 1 at 4).

When he has asked about having an MRI, “Dr. Tippen tells [him] he [does not] believe anything

is wrong.” Plaintiff acknowledges receiving x-rays, but says that he has been told that “they don’t

have anything to compare them with.” He states that he has “asked for proper medical attention

but all [he] was given was pain pills and small things but no surgery to repair [his] knee or [his]

right hand.”

As a result of his knee and hand injuries, plaintiff seeks to have the Missouri Department

of Corrections and Corizon send him to a specialist. (Docket No. 1 at 5). He also requests $1.5

million in damages.

Discussion

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

1983, alleging deliberate indifference 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 direct plaintiff to file an amended complaint.

A. Deficiencies in Complaint

Plaintiff’s complaint is subject to dismissal for three reasons. First, the claim against the

Missouri Department of Corrections is barred by the Eleventh Amendment’s grant of sovereign

immunity. The Missouri Department of Corrections is a department of the State of Missouri. As

such, a claim against it is treated as a claim against the state itself. “The Eleventh Amendment

protects States and their arms and instrumentalities from suit in federal court.” Webb v. City of

Maplewood, 889 F.3d 483, 485 (8th Cir. 2018) This protection extends to suits for any kind of

relief, not merely monetary damages. Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir.

2007) (stating that district court erred in allowing plaintiff to proceed against state university for

injunctive relief, and remanding matter to district court for dismissal).

Second, as to Corizon Staff, only one person – Dr. Tippen – is named in the complaint. Dr.

Tippen is not properly listed as a defendant in the case caption. See Fed. R. Civ. P. 10(a) (“The

title of the complaint must name all the parties”). Furthermore, plaintiff does not indicate the

capacity in which Dr. Tippen is sued. Thus, the claim against Dr. Tippen is treated as being made

in his official capacity only. See Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007). An official

capacity claim against an individual is treated as a claim against that individual’s employer. See

White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017). Because Dr. Tippen is employed by

Corizon, plaintiff must demonstrate Corizon’s liability. However, he has failed to present any facts

showing he was harmed due to a Corizon policy, custom, or official action. See 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”).

Finally, even if the Court treated the claim against Dr. Tippen as being made in his

individual capacity, plaintiff has failed to connect Dr. Tippen’s actions to a constitutional violation.

See Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006) (explaining that 42 U.S.C. § 1983

liability “requires a causal link to, and direct responsibility for, the deprivation of rights”). At most,

plaintiff has established a disagreement between himself and Dr. Tippen over the course of his

treatment. Such a disagreement does not amount to a violation of plaintiff’s constitutional rights.

See Meuir v. Greene Cty. Jail Emps., 487 F.3d 1115, 1118-19 (8th Cir. 2007) (“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”); and Cejvanovic v. Ludwick, 923 F.3d 503,

507 (8th Cir. 2019) (stating that a “mere disagreement with treatment decisions…does not rise to

the level of a constitutional violation”).

For all these reasons, plaintiff’s complaint is subject to dismissal. Rather than dismissing

outright, however, the Court will give plaintiff the opportunity to file an amended complaint,

according to the instructions set forth below. Plaintiff must follow these instructions.

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).

In structuring his amended complaint, plaintiff 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 specific defendant. If plaintiff

is suing more than one defendant, he should follow the same procedure for each defendant.

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 (8th Cir. 1990) (stating that § 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 (8th Cir.

2017).

If plaintiff is suing multiple defendants, 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 (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”).

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

(8th 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. Plaintiff’s failure to make specific factual allegations against a defendant will result in the

dismissal of that defendant. If plaintiff fails to file an amended complaint on a Court-provided

form within thirty days in accordance with the instructions set forth herein, the Court will dismiss

this action without prejudice and without further notice to plaintiff.

C. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. (Docket No. 4). 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 the appointment of counsel is not warranted

at this time. As discussed above, plaintiff is being ordered to file an amended complaint.

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, if appropriate.

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 partial filing fee of $61.33

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 plaintiff’s motion for appointment of counsel (Docket

No. 4) is DENIED at this time.

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 in accordance with the instructions set forth above within thirty (30) days of the

date of this order.

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

Court-provided form in accordance with the instructions set forth above within thirty (30) days

of the date of this order, the Court will dismiss this action without prejudice and without further

notice.

IT IS FURTHER ORDERED that upon the filing of plaintiff’s amended complaint, the

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

Dated this 1st day of November, 2021.

/s/ Stephen R. Welby_______________

STEPHEN R. WELBY

UNITED STATES MAGISTRATE JUDGE