United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.
a civil rights case filed by the Plaintiff, John Franklin
Bittick, III, under the provisions of 42 U.S.C. § 1983.
Plaintiff proceeds pro se and has filed an
application to proceed in forma pauperis
("IFP")(Doc. 2). He is currently incarcerated in
the Benton County Detention Center ("BCDC"). The
Prison Litigation Reform Act ("PLRA") modified the
IFP statute, 28 U.S.C. § 1915, to require the Court to
screen complaints for dismissal under § 1915(e)(2)(B).
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. 1), on June 30,
2017, Plaintiff submitted a medical request stating he was
experiencing a loss of energy, a loss of appetite, stomach
tightness, and having difficulty urinating. He also stated
his urine was bright yellow; he felt sick to his stomach;
and, he "went to throw up." In response, Plaintiff
was told he was put on the sick call list, but that they had
received a high number of sick call requests and there might
be a delay in his being seen.
4, 2017, Plaintiff submitted a second medical request.
Plaintiff stated he had not yet been seen and was
experiencing pain in his side, was yellow, and had trouble
urinating. He said he was trying to be respectful but was
worried something was wrong. In response, he was told he was
on the doctor's list.
7, 2017, Plaintiff alleges Dr. Saez ordered lab tests and an
ultrasound. Plaintiff does not indicate whether he was seen
by the doctor that day or at any other time. Plaintiff states
the lab tests were performed but the ultrasound was not.
alleges he was in need of prompt medical treatment and his
health and safety are at issue. As relief, Plaintiff seeks
compensatory and punitive damages.
the PLRA, the 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
Eighth Amendment's prohibition against cruel and unusual
punishment establishes the government's obligation to
provide medical care for those whom it is punishing by
incarceration. An inmate must rely on prison authorities to
treat his medical needs; if the authorities fail to do so,
those needs will not be met. Estelle v. Gamble, 429
U.S. 97, 103 (1976) (internal quotation marks and citation
omitted). "For this reason, the Eighth Amendment
proscribes deliberate indifference to the serious medical
needs of prisoners." Robinson v. Hager, 292
F.3d 560, 563 (8th Cir. 2002) (citing Estelle, 429
U.S. at 104). The Eighth Amendment does not, however, mandate
that the medical care provided to the prisoner "be
perfect, the best obtainable, or even very good."
Harris v. Thigpen, 941 F.2d 1495, 1510 (11th Cir.
order to succeed on a denial of medical care claim, an inmate
must show both that he had an objectively serious medical
need and that the defendant was deliberately indifferent to
that need. Coleman v. Rahija, 114 F.3d 778, 784 (8th
Cir. 1997) (citations omitted). "A medical need is
serious when it has been diagnosed by a physician as
requiring treatment, or is so obvious that even a layperson
would easily recognize the necessity for a doctors
attention." Phillips v. Jasper County Jail, 437
F.3d 791, 795 (8th Cir. 2006) (citation omitted).
"Deliberate indifference may be demonstrated by prison
guards who intentionally deny or delay access to medical care
or intentionally interfere with prescribed treatment, or by
prison doctors who fail to respond to prisoner's serious
medical needs. Mere negligence or medical malpractice,
however, are insufficient to rise to a constitutional
violation." Dulanyv. Carnahan, 132 F.3d 1234,
1239 (8th Cir. 1997) (citation omitted).
has not alleged facts sufficient to assert a plausible claim
against Southern Health Partners or to state an official
capacity claim against Dr. Saez or Jason Ziemer. Official
capacity claims are "functionally equivalent to a suit
against the employing governmental [or institutional]
entity." Veatch v. Bartels Lutheran Home, 627
F.3d 1254, 1257 (8th Cir. 2010). A Plaintiff "seeking to
impose liability on a municipality [or institution] under
§ 1983 [must] identify [an unconstitutional] policy or
custom that caused the plaintiffs injury." Board of
County Commissioners of Bryan County, Oklahoma v. Brown,
520 U.S. 397, 403 (1997). "There are two basic
circumstances under which municipal [or institutional]
liability will attach: (1) where a particular policy or
custom itself violates federal law, or directs an employee to
do so; and (2) where a facially lawful policy or custom was
adopted with 'deliberate indifference' to its known
or obvious consequences." Moyle v. Anderson,
571 F.3d 814, 817=t8 (8th Cir. 2009) (citation omitted).
has not alleged that the existence of any custom or policy
was the moving force behind the alleged constitutional
violation. Plaintiff has not alleged a plausible official
capacity claim. Accordingly, SHP and the official capacity
claims against the individual Defendants should be dismissed.
respect to Dr. Saez, the only facts alleged are that he
ordered lab tests and an ultrasound. While Plaintiff
indicates the ultrasound was not performed, there is no
allegation that Dr. Saez was involved in scheduling the test,
knew it had not been performed, or that Plaintiff even
requested to see him after the tests were ordered on July 7,
2017. In short, no facts are alleged to ...