Power v. Sparks, MD et al - Document 3
INITIAL Review Order Dismissing Case: 1 Application to proceed in forma pauperis is granted. The clerk of court is directed to file the complaint without payment of the filing fee. The plaintiff is directed to submit an initial partial filing fee of $4.54 by no later than 12/30/11. After the plaintiff pays the initial partial filing fee, the institute having custody of the plaintiff is directed to collect and remit monthly payments in the manner set forth in 28 U.S.C. Sec. 1915(b)(2) unt il the $350.00 filing fee is paid in full. The clerk of court is directed to send a copy of this order and the notice of collection of filing fee to the appropriate official at the place where the plaintiff is an inmate. The plaintiff's 42 U.S.C. Sec. 1983 action is dismissed. The dismissal of the instant action counts against the plaintiff for purposes of the three-dismissal rule set forth in 28 U.S.C. Sec. 1915(g). Appeal packet mailed to plaintiff. Signed by Chief Judge Linda R Reade on 12/7/11. (Copy w/NEF to Defendant; Copy to Linn County Correctional Center; CRF) (ksy)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
STEPHEN SPARKS, ERICKA
LAWLER, RANDY CLARK, IOWA
DEPARTMENT OF CORRECTIONS,
UNIVERSITY OF IOWA HOSPITAL
INITIAL REVIEW ORDER
This matter is before the court on the plaintiff’s application to proceed in forma
pauperis (docket no. 1). The plaintiff submitted such application on August 2, 2011.
Along with his application to proceed in forma pauperis, the plaintiff submitted a complaint
under 42 U.S.C. § 1983. Additionally, on August 9, 2011, the plaintiff filed a supplement
to his complaint ( docket no. 2).
I. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
Based on the plaintiff’s application to proceed in forma pauperis, the court
concludes that the plaintiff does not have sufficient funds to pay the required filing fee.
28 U.S.C. § 1914(a) (requiring $350.00 filing fee). Thus, in forma pauperis status shall
be granted to the plaintiff. See generally 28 U.S.C. § 1915. The clerk’s office shall file
the complaint without the prepayment of the filing fee. Although the court deemed it
appropriate to grant the plaintiff in forma pauperis status, the plaintiff is required to pay
the full $350.00 filing fee by making payments on an installment basis. 28 U.S.C. §
1915(b)(1); see also In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997) (“[T]he [Prisoner
Litigation Reform Act] makes prisoners responsible for their filing fees the moment the
prisoner brings a civil action or files an appeal.”). The full filing fee will be collected
even if the court dismisses the case because it is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks money damages against a defendant who
is immune from such relief. 28 U.S.C. § 1915(e)(2).
Here, the plaintiff must pay an initial partial filing fee in the amount of 20 percent
of the greater of his average monthly account balance or average monthly deposits for the
six months preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Based on the
plaintiff’s account balance and the statements that the plaintiff made, the court finds that
the initial partial filing fee is $4.54. Id. The plaintiff shall submit $4.54 by no later than
December 30, 2011. Id. If necessary, the plaintiff may request in a written motion an
extension of time to pay the initial partial filing fee.
In addition to the initial partial filing fee, the plaintiff must “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 statute places the burden on the prisoner’s
institution to collect the additional monthly payments and forward them to the court.
[a]fter payment of the initial partial filing fee, the prisoner
shall be required to make monthly payments of 20 percent of
the preceding month’s income credited to the prisoner’s
account. The agency having custody of the prisoner shall
forward payments from the prisoner’s account to the clerk of
the court each time the amount in the account exceeds $10
until the filing fees are paid.
28 U.S.C. § 1915(b)(2). Therefore, after the plaintiff pays in full the initial partial filing
fee, the remaining installments shall be collected by the institution having custody of the
plaintiff. Id. The clerk’s office shall send a copy of this order and the notice of collection
of filing fee to the appropriate official at the place where the plaintiff is an inmate.
II. STANDARD OF REVIEW
A pro se complaint must be liberally construed. See Hughes v. Rowe, 449 U.S. 5,
9, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520, 92 S.
Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam); Smith v. St. Bernards Reg’l Med. Ctr., 19
F.3d 1254, 1255 (8th Cir. 1994). In addition, unless the facts alleged are clearly baseless,
they must be weighed in favor of the plaintiff. Denton v. Hernandez, 504 U.S. 25, 32-33,
112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992). A court, however, can dismiss at any time
a complaint filed in forma pauperis if the complaint is frivolous, malicious, fails to state
a claim on which relief may be granted, or seeks monetary relief against a defendant who
is immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b)(1). A claim
is “frivolous” if it “lacks an arguable basis in law or in fact.” Neitzke v. Williams, 490
U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); accord Cokeley v. Endell, 27
F.3d 331, 332 (8th Cir. 1994). An action fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d
929 (2007). Accordingly, a court may review the complaint and dismiss sua sponte those
claims that fail “‘to raise a right to relief above the speculative level. . . .’”, see Parkhurst
v. Tabor, 569 F.3d 861, 865 (8th Cir. 2009) (quoting Bell Atl., 550 U.S. at 555), or that
are premised on meritless legal theories or clearly lack any factual basis, see Neitzke, 490
U.S. at 325. See, e.g., Denton v. Hernandez, 504 U.S. at 27 (considering frivolousness);
Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (concluding that a district court may
dismiss an action if an affirmative defense exists).
III. CLAIM ASSERTED
Currently confined at the Linn County Correctional Center in Cedar Rapids, Iowa,
the plaintiff, proceeding pro se, submitted a complaint to redress issues that are related to
an injury that he suffered. Jurisdiction is predicated on 28 U.S.C. § 1343(a)(3). Under
28 U.S.C. § 1391(b), venue appears proper.
In his complaint, the plaintiff states:
Physician Stephen Sparks examined my right index finger. He
took a long hypodermic needle and inserted it into my finger
down into the second knuckle which caused an injury. Days
later, my finger became infected and I went to him
complaining that I thought the needle was infected. He said
that he saw no infection and placed me on ibuprofen 800 mg.
because there was swelling due to the infection. 60 days
passed and I’m still on 800 mg. ibuprofen and swelling has not
gone down. My finger has turned black and blue. Stephen
Sparks said I must have fractured my finger, but I assured him
that I don’t play sports. My wife called the head administrator
of the prison clinic to complain. Physician Sparks called me
back two days later and had an x-ray on my hand and found
out that I did indeed have an infection that went down into my
bone. I was immediately rushed to the U of I Hospital and
admitted for 10 days. My finger was in bad condition to
where doctors thought about amputating. Doctors asked me
why did physician Stephen Sparks wait so long to send you to
us (U of I Hospital) we could have treated this without
surgery. I was immediately given surgery. Physician Stephen
Sparks has been on probation for numerous complaints for
malpractice and he has settled out of court on prior cases. He
did not diagnosis my hand at all and was very negligent in his
lack of diagnosis. M.D. Ericka A. Lawler made a statement
that I should sue Sparks for damages, but M.D. Ericka A.
Lawler’s negligence has not helped. I went to her on a followup complaining that I am now disabled. I cannot bend my
fingers. Her reply was nothing can be done and she just
walked out of the room and left me sitting there.
Additionally, in his supplement, the plaintiff reiterates that the defendants acted negligently
when they provided medical care to him. As relief, the plaintiff states:
I would like for physician Stephen Sparks to no longer treat
patients and no longer be a physician and never work or be
employed in the field of medicine.
I am seeking
compensation. My career as a culinary art student/chef has
been set aside because of my hand. I cannot hold a chef knife
in my hand to slice or chop food. I am seeking a total sum of
$300,000,000 for stress, pain, suffering and the fact I am
disabled due to unprofessional medical staffing. I ask that
M.D. Erika A. Lawler and M.D. Randy Clark be held
responsible for their action and lack of diagnosis.
A. Claims Under 42 U.S.C. § 1983
Title 42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . .
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding
for redress . . .
42 U.S.C. § 1983 was designed to provide a “broad remedy for violations of federally
protected civil rights.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 685, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978). However, 42 U.S.C. § 1983 provides no substantive
rights. Albright v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994);
Graham v. Conner, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989);
Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S. Ct. 1905, 60 L. Ed.
2d 508 (1979). “One cannot go into court and claim a ‘violation of [42 U.S.C.] § 1983’
— for [42 U.S.C.] § 1983 by itself does not protect anyone against anything.” Chapman,
441 U.S. at 617. Rather, 42 U.S.C. § 1983 provides a remedy for violations of all
“rights, privileges, or immunities secured by the Constitution and laws [of the United
States].” 42 U.S.C. § 1983; see also Albright, 510 U.S. at 271 (42 U.S.C. § 1983
“merely provides a method for vindicating federal rights elsewhere conferred.”); Graham,
490 U.S. at 393-94 (same); Maine v. Thiboutot, 448 U.S. 1, 4, 100 S. Ct. 2502, 65 L. Ed.
2d 555 (1980) (“Constitution and laws” means 42 U.S.C. § 1983 provides remedies for
violations of rights created by federal statute, as well as those created by the
Constitution.). To state a claim under 42 U.S.C. § 1983, a plaintiff must establish: (1) the
violation of a right secured by the Constitution or laws of the United States, and (2) the
alleged deprivation of that right was committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988).
B. Plaintiff’s Claim
The Eighth Amendment to the United States Constitution provides that “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const., amend. VIII. Accordingly, the treatment a prisoner receives in
prison and the conditions of his confinement are subject to scrutiny under the Eighth
Amendment. Farmer v. Brennan, 511 U.S. 825, 831-32, 114 S. Ct. 1970, 1976, 128
L. Ed. 2d 811 (1994); Helling v. McKinney, 509 U.S. 25, 31-32, 113 S. Ct. 2475, 2480,
125 L. Ed. 2d 22 (1993). In its prohibition of cruel and unusual punishments, the Eighth
Amendment places a duty on jail and prison officials to provide inmates with necessary
medical attention. Wilson v. Seiter, 501 U.S. 294, 303, 111 S. Ct. 2321, 2326-27, 115
L. Ed. 2d 271 (1991); Weaver v. Clark, 45 F.3d 1253, 1255 (8th Cir. 1995). In this
context, a prison official violates the Eighth Amendment by being deliberately indifferent
either to a prisoner’s existing serious medical needs or to conditions posing a substantial
risk of serious future harm. Weaver, 45 F.3d at 1255 (comparing Estelle v. Gamble, 429
U.S. 97, 104-105, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976) (existing medical needs)
with Helling, 509 U.S. at 33-34, 113 S. Ct. at 2480-81 (risk of future harm to health)).
An Eighth Amendment violation occurs only when two requirements are met:
(1) “the deprivation alleged must be, objectively, ‘sufficiently serious,’” and (2) the
“prison official must be, as a subjective state of mind, deliberately indifferent to the
prisoner’s health or safety.” Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995)
(citations omitted); see also Helling, 509 U.S. at 32; Estelle, 429 U.S. at 106; Jolly v.
Knudson, 205 F.3d 1094, 1096 (8th Cir. 2000); Williams v. Delo, 49 F.3d 442, 445-47
(8th Cir. 1995). In the context of a prisoner’s claim of inadequate medical care, society
does not expect that prisoners will have unqualified access to health care. Hudson v.
McMillian, 503 U.S. 1, 9, 112 S. Ct. 995, 1000, 117 L. Ed. 2d 156 (1992).
Consequently, “deliberate indifference to medical needs amounts to an Eighth Amendment
violation only if those needs are ‘serious.’” Id. (citing Estelle, 429 U.S. at 103-04); see
also Wilson, 501 U.S. at 298.
To constitute an objectively serious medical need or a deprivation of that need, the
need or the deprivation either must be supported by medical evidence or must be so
obvious that a layperson would recognize the need for a doctor’s attention. Aswegan v.
Henry, 49 F.3d 461, 464 (8th Cir. 1995); Johnson v. Busby, 953 F.2d 349, 351 (8th Cir.
1991); see, e.g., Beyerbach, 49 F.3d at 1326-27 (insufficient evidence of objective
seriousness when there is no medical evidence that delay in treatment produced any harm);
Kayser v. Caspari, 16 F.3d 280, 281 (8th Cir. 1994) (insufficient evidence of serious
medical need when the medical need claimed is based on bare assertion of inmate). The
objective portion of the deliberate indifference standard requires a showing of verifiable
medical evidence that a defendant ignored an acute or escalating situation, or that delays
adversely affected the prognosis given the type of medical condition present in the case.
See Dulany v. Carnahan, 132 F.3d 1234, 1243 (8th Cir. 1997) (citing Crowley v.
Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997), and Beyerbach, 49 F.3d at 1326); see also
O’Neil v. White, 221 F.3d 1343, 1343 (8th Cir. 2000) (citing Crowley, 109 F.3d at 502).
To meet the second requirement, the “subjective” component of an Eighth
Amendment claim, a prison or jail official must have a “sufficiently culpable state of
mind.” Wilson, 501 U.S. at 297-303; Hudson, 503 U.S. at 8. In a medical needs claim,
that state of mind is one of “deliberate indifference” to inmate health. Farmer, 511 U.S.
at 838-39; Helling, 509 U.S. at 32; Wilson, 501 U.S. at 302-303; Estelle, 429 U.S. at 106.
Regarding the meaning of the term “deliberate indifference,” the United States Supreme
Court has explained:
[A] prison official cannot be held liable under the Eighth Amendment
for denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of the facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference. . . . The Eighth
Amendment does not outlaw cruel and unusual “conditions”; it
outlaws cruel and unusual “punishments.”
Farmer, 511 U.S. at 837.
Thus, to establish the second requirement, “deliberate
indifference,” a plaintiff must assert facts showing the defendant actually knew of and
disregarded a substantial risk of serious harm to his or her health or safety. Id., 511 U.S.
at 840-47; Helling, 509 U.S. at 32.
Medical treatment that displays “deliberate indifference” violates the Eighth
Amendment “whether the indifference is manifested by prison doctors in their response
to the prisoner’s needs or by prison guards in intentionally denying or delaying access to
medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429
U.S. at 104-05; see also Foulks v. Cole County, 991 F.2d 454, 456-57 (8th Cir. 1993).
Negligent acts by prison officials, however, are not actionable under 42 U.S.C. section
1983. See Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S. Ct. 668, 670, 88 L. Ed.
2d 677 (1986); Daniels v. Williams, 474 U.S. 327, 333-34, 106 S. Ct. 662, 666, 88 L.
Ed. 2d 662 (1986); Estelle, 429 U.S. at 106; Taylor v. Bowers, 966 F.2d 417, 421 (8th
Cir. 1992). Further, an inmate’s disagreement or displeasure with his course of medical
treatment is not actionable under 42 U.S.C. § 1983. Dulany, 132 F.3d at 1239-44;
Bellecourt v. United States, 994 F.2d 427, 431 (8th Cir. 1993); Davis v. Hall, 992 F.2d
151, 153 (8th Cir. 1993) (per curiam); Warren v. Fanning, 950 F.2d 1370, 1373 (8th Cir.
1991); Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990); Givens v. Jones, 900
F.2d 1229, 1233 (8th Cir. 1990).
Here, the plaintiff disapproves of how the defendants treated his finger. Stated
differently, the plaintiff dislikes the fact that, although he questioned whether his finger
became infected after a medical procedure was performed, the doctor who examined him
concluded that it was not infected. Based on the facts as pleaded, the plaintiff fails to state
a claim of an Eighth Amendment medical needs violation. The facts alleged do not
establish that the plaintiff had a serious medical need and the defendants actually knew of
and deliberately disregarded his serious medical need. Rather, the facts, at most, indicate
that a doctor mis-diagnosed the cause for the problems that the plaintiff was experiencing
with his finger. Because the facts presented by the plaintiff belie any assertion of
deliberate indifference by the defendants, the plaintiff fails to state a claim on which relief
may be granted. Cf. Jones v. Norris, 310 F.3d 610, 612 (8th Cir. 2002) (dismissing case
as frivolous because “[n]either differences of opinion nor medical malpractice state an
actionable Constitutional violation”); Williams v. Kelso, 201 F.3d 1060, 1065 (8th Cir.
2000) (“[T]he law requires that [the] plaintiff make a showing of subjective awareness by
the prison officials of a “substantial risk” of “serious harm” . . . in order to establish [a
viable] cause of action.”).
Further, to the extent that the plaintiff is attempting to assert state-law claims, the
court declines to exercise supplemental jurisdiction. See Brown v. Peterson, 156 Fed.
App’x 870, 871 (8th Cir. 2005) (concluding decision to exercise supplemental jurisdiction
over state-law claim is discretionary); see also McLaurin v. Prater, 30 F.3d 982, 985 (8th
Cir. 1994) (indicating subsection (c) of 28 U.S.C. § 1367 clearly gives a court discretion
to reject jurisdiction over supplemental claims).
In sum, the plaintiff’s action shall be dismissed as frivolous or for failing to state
a claim upon which relief can be granted. Because the court deems it appropriate to
dismiss the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), the dismissal of this action
shall count against the plaintiff for purposes of the three-dismissal rule set forth in 28
U.S.C. § 1915(g).
IT IS THEREFORE ORDERED:
(1) The plaintiff’s application to proceed in forma pauperis status (docket no. 1)
(2) The clerk’s office is directed to file the complaint without the prepayment of
the filing fee.
(3) The plaintiff is directed to submit an initial partial filing fee of $4.54 by no
later than December 30, 2011. If necessary, the plaintiff may request in a written
motion an extension of time to pay the initial partial filing fee.
(4) After the plaintiff pays the initial partial filing fee, the institution having
custody of the plaintiff is directed to collect and remit monthly payments in the
manner set forth in 28 U.S.C. § 1915(b)(2). Until the $350.00 filing fee is paid
in full, the plaintiff is obligated to pay and the institution having custody of him is
obligated to forward 20 percent of the preceding month’s income credited to his
account each time the amount in the account exceeds $10.00.
(5) The clerk’s office is directed to send a copy of this order and the notice of
collection of filing fee to the appropriate official at the place where the plaintiff is
(6) The plaintiff’s 42 U.S.C. § 1983 action is dismissed pursuant to 28 U.S.C. §
(7) The dismissal of the instant action counts against the plaintiff for purposes of
the three-dismissal rule set forth in 28 U.S.C. § 1915(g).
DATED this 7th day of December, 2011.
Linn County Correctional Center, Cedar Rapids, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Jerome Power, an inmate at your facility, filed
the following lawsuit in the United States District Court for the Northern District of Iowa:
Power v. Sparks et al., Case No. C11-0097-LRR. The inmate was granted in forma
pauperis status pursuant to 28 U.S.C. § 1915(b), which requires partial payments of the
$350.00 filing fee. Based on the inmate’s account information, the court has assessed an
initial partial filing fee of $4.54, which the inmate must pay now to the clerk of court.
28 U.S.C. § 1915(b)(1).
After payment of the initial partial filing fee, the [inmate]
shall be required to make monthly payments of 20 percent of
the preceding month’s income credited to [his] account. The
agency having custody of the [inmate] shall forward payments
from [his] account to the clerk of the court each time the
amount in the account exceeds $10 until the filing fees are
28 U.S.C. § 1915(b)(2). Therefore, you must monitor the account and send payments to
the clerk of court according to the system provided in 28 U.S.C. § 1915(b)(2), that is,
you should begin making monthly payments of 20 percent of the preceding month’s
income credited to the inmate’s account.
Please make the appropriate arrangements to have these fees deducted and sent to
the court as instructed.
Robert L. Phelps
U.S. District Court Clerk
Northern District of Iowa