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Murphy v. Payne

United States District Court, E.D. Arkansas, Northern Division

May 7, 2019

LISA R. MURPHY ADC #760343 PLAINTIFF
v.
PAYNE, Director, ADC, et al., DEFENDANTS

          ORDER

          Kristine G. Baker, United States District Judge.

         Before the Court are the Proposed Findings and Recommendations submitted by United States Magistrate Judge Joe J. Volpe (Dkt. No. 7). No. objections have been filed, and the time to file objections has passed. After the Proposed Findings and Recommendations were submitted, however, plaintiff Lisa R. Murphy filed several motions for leave to proceed in forma pauperis and filed several amended complaints (Dkt. Nos. 8, 9, 10, 11, 12, 14, 15, 16, 17). Ms. Murphy has also filed motions for status update and a motion for copies (Dkt. No. 11, 13, 19, 20).

         After careful consideration of the Proposed Findings and Recommendations and the other pending filings, the Court adopts the Proposed Findings and Recommendations as its findings in all respects (Dkt. No. 7). The Court also concludes that Ms. Murphy's claims must be dismissed without prejudice because she is a “three-striker” who has failed to allege any imminent danger of harm. Accordingly, the Court denies Ms. Murphy's motions for in forma pauperis status and dismisses without prejudice her original complaint, amended complaints, and supplemental complaints (Dkt. Nos. 2, 8, 9, 10, 14, 15, 16, 17). The Court also denies as moot Ms. Murphy's motions for status update and motion to add defendants (Dkt. Nos. 11, 12, 19, 20). Finally, the Court grants Ms. Murphy's motion for copies (Dkt. No. 13).

         I. In Forma Pauperis

         Ms. Murphy, an inmate at the McPherson Unit of the Arkansas Department of Correction, initially filed a pro se complaint under 42 U.S.C. § 1983 and an application to proceed in forma pauperis (Dkt. Nos. 1, 2). Judge Volpe denied Ms. Murphy's initial in forma pauperis application because she failed to include a calculation sheet or a certified copy of her trust fund account statement (Dkt. No. 6). Judge Volpe gave Ms. Murphy 30 days to either pay the statutory filing fee or submit a properly completed in forma pauperis application. Judge Volpe recommends dismissal of this action because Ms. Murphy failed to follow his instructions (Dkt. No. 7, at 2-3).

         On December 13, 2018, Ms. Murphy did file an updated application to proceed in forma pauperis (Dkt. No. 9). While Ms. Murphy's untimely filing may cure the problems identified with her initial in forma pauperis application, for the reasons discussed below, the Court concludes that Ms. Murphy's claims must be dismissed pursuant to the Prison Litigation Reform Act's (“PLRA”) three-strike rule.

         II. Ms. Murphy's Claims

         Ms. Murphy's original complaint was filed on October 19, 2018 (Dkt. No. 2). Following the submission of the Proposed Findings and Recommendations, Ms. Murphy filed three amended complaints, a supplemental complaint, and a motion to add defendants (Dkt. Nos. 8, 10, 12, 15, 17). The Court has reviewed all filings in making this determination.

         A. Initial Complaint

         In her initial complaint, Ms. Murphy alleges that she has a heart condition and that defendants have provided her with inadequate medical care (Dkt. No. 2, at 10). Specifically, Ms. Murphy alleges that, on January 1, 2016, she was taken to “Hariss hospital for a CT” where it “was determined that she had artioclortic calsification . . . .” (Id.). Ms. Murphy further states that she “continued to complain” about her medical condition for “one more year.” (Id., at 10-11). She avers that she was then given a heart ultrasound, “one of which showed ‘regurgitations' . . . .” (Id., at 11). Ms. Murphy then alleges that she “continued to complain for appox. one more year.” (Dkt. No. 2, at 11). She states that “[f]inally, after threats of legal action, Dr. Hughes ordered plaintiff a heart monitor test, ” but she alleges that he refuses to show her the test results (Id., at 11-12). She further alleges that she “has severe chest pains” and “abnormal EKG[]s pretty much every single day.” (Id., at 12). She claims that, when her heart disease was initially discovered, she believes that Dr. Hughes and APN Hutchinson should have set up an outside consult with a cardiologist (Id., at 16).

         Ms. Murphy also alleges claims arising out of events that occurred on April 1, 2018, and October 18, 2018 (Dkt. No. 2, at 12-13, 15). She alleges that, on April 1, 2018, she woke up with severe chest pains and sought emergency help (Id., at 13). She claims that the officers who responded did not provide her with emergency care but instead used excessive force against her (Id.). She alleges that, on October 18, 2018, she “presented at medical for chest pains.” (Id., at 15). Ms. Murphy asserts that, “in place of receiving medical treatment . . ., she received disciplinary action.” (Dkt. No. 10, at 15). She further asserts that she was not malingering and that she was written up to compel her not to seek medical attention (Id., at 16).

         B. Amended Complaints And Motion To Add Defendants

         Ms. Murphy's allegations in her first amended complaint mirror those in her original complaint, but in her first amended complaint she notes that she has received the results of her heart monitor test, which she previously alleged were withheld from her (Dkt. No. 8, at 12). She alleges that the results of this test show “serious heart conditions, conditions of which she has to present via a cardiologist.” (Id.). Ms. Murphy's second and third amended complaint add “Sgt. Rudd and C/O Deberry” as defendants (Dkt. Nos. 9, at 1; 10, at 1). Ms. Murphy's fourth amended complaint alleges the same claims but adds additional defendants (Dkt. No. 15, at 21-22). In her motion to add defendants, Ms. Murphy seeks to add the following individuals as defendants in this action: “Sgt. Omelia, C/O Skinner, C/O Bateman, Nurse Scott, Nurse Wayland, Ms. Hubbard, Dr. Hughes[, ] and Nurse Albritton . . . .” (Dkt. No. 12).

         C. Supplemental Complaint

         Ms. Murphy's supplemental complaint appears to relate to new claims. In her supplemental complaint, Ms. Murphy alleges that she has “complained of very serious . . . back, neck, knee, wrist[, ] and stomach pain.” (Dkt. No. 17, at 7). Ms. Murphy further alleges that she would present at sick call and be given a “CT scan, MRI scan, or X-ray . . ., and every single scan would show a serious need for follow up with an outside provider . . . .” (Id.). Ms. Murphy states that Dr. Hughes and APN Hutchinson would, rather than following up on these scans, force her to go through the same tests again, “forcing plaintiff to overexposure to unnecessary radiation.” (Id., at 8). Ms. Murphy avers that “[t]his over exposure to radiation has already begun to severl[y] affect plaintiffs' vision, has caused severe nerve damage to her chest wall and face . . .[a]s well as cell damage throughout her whole body.” (Id.). Ms. Murphy further avers that she has made nurses aware of the harms she has suffered, but they have been “deliberately indifferent to [her] medical needs.” (Dkt. No. 17, at 8).

         Ms. Murphy separately alleges that she suffers from “severe back trauma” and “severe neck trauma” for which she has received no follow-up. She also alleges that she has carpal tunnel in both of her wrists and severe stomach pains (Id.). She states that “her hand[s] are almost useless” and that she has been denied any follow-up for this condition (Id., at 12). Ms. Murphy also alleges various maladies related to her stomach. She alleges that she suffers from stomach pain, ...


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