Opinion
4:24-cv-00431-LPR-JJV
11-04-2024
MICHAEL EDWARD ALLEN ADC #176724 PLAINTIFF v. DESMUT, Lt., Pine Bluff Unit, ADC, et al. DEFENDANTS
RECOMMENDED DISPOSITION
JOE J. VOLPE UNITED STATES MAGISTRATE JUDGE
The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge Lee P. Rudofsky. Any party may serve and file written objections to this Recommendation. Objections should be specific and include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. Your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of this Recommendation. Failure to file timely objections may result in a waiver of the right to appeal questions of fact.
I. SCREENING
Michael Edward Allen is a prisoner in the Arkansas Department of Correction who has filed a pro se Complaint seeking relief pursuant to 42 U.S.C. § 1983. (Doc. 1.) The Prison Litigation Reform Act requires federal courts to screen prisoner complaints seeking relief against a governmental entity, officer, or employee. 28 U.S.C. § 1915A. The court must dismiss a complaint or portion thereof if the prisoner has raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. Id. When conducting this review, the court construes pro se pleadings liberally. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). But “labels and conclusions,” “formulaic recitation[s] of the elements of a cause of action,” and “naked assertions devoid of further factual enhancement” are insufficient to plead a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint must provide “sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Id.
II. ALLEGATIONS
Plaintiff says on March 21, 2024, he had tested positive for Covid and had a 103 fever. (Doc. 1.) According to Plaintiff, Defendants Nurse Restler, Nurse Davis, and Lieutenant Desmut transferred him to an isolation cell for six days. According to the attached grievance response, Plaintiff received acetaminophen, loratadine, and an unnamed medication for chest congestion during that time period. See Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011) (a court may consider exhibits and attachments to the complaint when screening a complaint under § 1915A). But Plaintiff says that, despite being semi-conscious for two to three days, no one from the medical department came into the isolation cell to check his vital signs or temperature. And, because he was sixty-five years old and had previously had two heart attacks, Plaintiff believes he should have been immediately taken to the hospital for observation instead of being placed in an isolation cell at the prison. After careful consideration, I conclude Plaintiff has not pled a plausible constitutional claim for the following reasons.
“The Eighth Amendment requires state prison officials to provide inmates with needed medical care.” Cullor v. Baldwin, 830 F.3d 830, 836 (8th Cir. 2016). But the bar for pleading a plausible Eighth Amendment claim is high. Specifically, there must be facts suggesting the prisoner: (1) had an objectively serious need for medical care; and (2) each defendant subjectively knew of, but deliberately disregarded, that serious medical need. Shipp v. Murphy, 9 F.4th 694, 703 (8th Cir. 2021). Plaintiff says Defendants were deliberately indifferent because they did not take him to a hospital or check his temperature and vital signs for six days. However, a disagreement with the course of care, medical malpractice, and even gross negligence are not enough to sustain an Eighth Amendment claim. Hall v. Higgins, 77 F.4th 1171, 1179 (8th Cir. 2023) (to be deliberate indifference, a defendant “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference”); Barr v. Pearson, 909 F.3d 919, 921-22 (8th Cir. 2018). And, Plaintiff has not pled any facts suggesting he was harmed by what he believes was inappropriate medical monitoring for six days. See Mason v. Corr. Med. Servs., Inc., 559 F.3d 880, 885 (8th Cir. 2009) (a prisoner must show harm to proceed with an inadequate medical care claim); Robinson v. Hager, 292 F.3d 560, 564 (8th Cir. 2002) (no plausible claim when a prisoner was not actually harmed by the failure to receive his hypertension medication); Irving v. Dormire, 519 F.3d 441, 448 (8th Cir. 2008) (“Because a § 1983 action is a type of tort claim, general principles of tort law require that a plaintiff suffer some actual injury before he can receive compensation”). Accordingly, I conclude Plaintiff has failed to plead a plausible Eighth Amendment violation.
III. CONCLUSION
IT IS, THEREFORE, RECOMMENDED that:
1. The Complaint (Doc. 1) be DISMISSED without prejudice for failing to state a claim upon which relief may be granted.
2. The Court recommend dismissal count as a strike, in the future, for purposes of 28 U.S.C. § 1915(g).
3. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from an Order adopting this Recommendation and the accompanying Judgment would not be taken in good faith.