United States District Court, W.D. Arkansas, Harrison Division
OPINION AND ORDER
TIMOTHY L. BROOKS STATES DISTRICT JUDGE
a civil rights case filed by the Plaintiff, Robert John
Burgess, under the provisions of 42 U.S.C. § 1983.
Plaintiff proceeds pro se. Plaintiff is no longer
incarcerated, but at all times relevant to the complaint he
was incarcerated in the Boone County Detention Center
Plaintiff has filed an application to proceed in forma
pauperis ("IFP") (Doc. 1) under 28 U.S.C.
§ 1915. Pursuant to 28 U.S.C. § 1915(e)(2), the
Court has the obligation to screen any complaint in which an
individual has sought leave to proceed IFP. 28 U.S.C. §
1915(e)(2). The Court must dismiss a complaint, or any
portion of it, if it contains claims that: (a) are 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. 28 U.S.C. §1915(e)(2)(B).
to the allegations of the Complaint (Doc. 2), Plaintiff was
booked into the BCDC on March 8, 2016. He alleges he had a
dislocated shoulder, has chronic obstructive pulmonary
disease (COPD), and was on Symbicort inhalers. Plaintiff
alleges he received no treatment for his shoulder, he did not
receive his medication, and he suffered hear attacks on April
19, 2016 and April 30, 2016.
alleges he was not seen by a doctor until May when he was
taken to Mediquick to be seen because he maintained he had
suffered heart attacks. Plaintiff was seen by Dr. Lee who did
not believe Plaintiff suffered heart attacks and ran no
medical tests. After his release from jail, Plaintiff states
he had a test run that showed that he did suffer heart
wants to sue Dr. Lee for "medical malpractice and
medical negligence." As relief, Plaintiff seeks an award
of $250, 000, 000.
Court is obligated to screen a case prior to service of
process being issued. A claim is frivolous when it
"lacks an arguable basis either in law or fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A
claim fails to state a claim upon which relief may be granted
if it does not allege "enough facts to state a claim to
relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court
bears in mind, however, that when "evaluating whether a
pro se plaintiff has asserted sufficient facts to
state a claim, we hold 'a pro se complaint,
however inartfully pleaded, ... to less stringent standards
than formal pleadings drafted by lawyers.'"
Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014)
(quoting Erickson v. Pardus, 551 U.S. 89, 94
1983 provides a federal cause of action for the deprivation,
under color of law, of a citizen's "rights,
privileges, or immunities secured by the Constitution and
laws" of the United States. In order to state a claim
under 42 U.S.C. § 1983, a plaintiff must allege that
each defendant acted under color of state law and that he or
she violated a right secured by the Constitution. West v.
Atkins, 487 U.S. 42 (1988); Dunham v. Wadley,
195 F.3d 1007, 1009 (8th Cir. 1999). The deprivation must be
intentional; mere negligence will not suffice to state a
claim for deprivation of a constitutional right under §
1983. Daniels v. Williams, 474 U.S. 327
(1986); Davidson v. Cannon, 474 U.S. 344 (1986).
is a private physician employed by Mediquick. In Montano
v. Hedgepeth, 120 F.3d 844 (8th Cir. 1997), the Eighth
Circuit set forth the analysis to be applied in determining
whether state action exists for purposes of § 1983.
Specifically, the Eighth Circuit said:
In ascertaining the presence of state action, we must examine
the record to determine whether "the conduct allegedly
causing the deprivation of a federal right [is] fairly
attributable to the State." Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d
482 (1982). Resolving this question entails a journey down a
particularly fact-bound path, see Id. at 939, 102
S.Ct. at 2754-55, but the Supreme Court has identified two
legal touchstones to provide guidance along the way. To begin
with, there can be no "fair attribution" unless the
alleged constitutional violation was "caused by the
exercise of some right or privilege created by the State or
by a rule of conduct imposed by the State or by a person for
whom the State is responsible." Id. at 937, 102
S.Ct. at 2753. Furthermore, "the party charged with the
deprivation must be a person who may fairly be said to be a
state actor. This may be because he is a state official,
because he has acted together with or has obtained
significant aid from state officials, or because his conduct
is otherwise chargeable to the State." Id.; see also
Roudybush v. label, 813 F.2d 173, 176-77 (8th Cir. 1987)
(repeating two part test).
Montano, 120 F.3d at 848.
case, Plaintiff has alleged only that he was treated ...