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George Harp v. Mike Durfee State Prison; South Dakota State Prison; South Dakota Dept. of Corr

January 20, 2012

GEORGE HARP,
PLAINTIFF,
v.
MIKE DURFEE STATE PRISON; SOUTH DAKOTA STATE PRISON; SOUTH DAKOTA DEPT. OF CORR.,
(D.O.C.), SUPERINTENDENT, INDIVIDUAL
AND OFFICIAL CAPACITY; SOUTH DAKOTA PRISON MED. DEPT.; DOOLEY, WARDEN, INDIVIDUAL AND OFFICIAL CAPACITY; DR. WILINGA, INDIVIDUAL AND OFFICIAL CAPACITY; WEBBER, WARDEN SO. DAK. ST. PR.; AND DR. REGERE; DEFENDANTS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND DENYING MOTION TO APPOINT COUNSEL AS PREMATURE

Plaintiff, George Harp, is incarcerated at the South Dakota State Penitentiary. Harp filed a pro se civil rights lawsuit against defendants in which he argues they subjected him to cruel and unusual conditions in violation of the Eighth Amendment. Harp moves for leave to proceed in forma pauperis in his civil rights lawsuit against defendants. Harp also moves for the appointment of counsel.

The Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915, requires prisoners to make an initial partial filing payment where possible, even if in forma pauperis status is sought. When an inmate seeks in forma pauperis status, the only issue is whether the inmate pays the entire fee at the initiation of the proceedings or over a period of time under an installment plan. Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (internal citations omitted). Determination of the partial filing fee is calculated according to 28 U.S.C. § 1915(b)(1), which requires a payment of 20 percent of the greater of:

(A) the average monthly deposits to the prisoner's account; or

(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.

Harp has indicated the average of the monthly deposits to his account is $15, and the average monthly balance of his account is $75.06. Harp must make an initial partial filing fee of $15.01, which is 20 percent of $75.06. Accordingly, Harp is granted in forma pauperis status.

But the inquiry does not end there. The PLRA also requires this court to "screen" Harp's complaint to determine whether it should be dismissed. Section 1915 provides an action must be dismissed if the court determines the claim "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief."

STANDARD OF REVIEW

The court must assume as true all facts well pleaded in the complaint. Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995). Also, "although liberally construed, a pro se complaint must contain specific facts supporting its conclusions." Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993) (citations omitted). A plaintiff's complaint "does not need detailed factual allegations . . . [but] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). If it does not contain these bare essentials, dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Twombly requires that a complaint's factual allegations must be "enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true." Id. at 1965; Abdullah v. Minnesota, No. 06-4142, 2008 WL 283693 (8th Cir. Feb. 4, 2008) (citing Twombly and noting complaint must contain either direct or inferential allegations regarding all material elements necessary to sustain recovery under some viable legal theory).

It has long been recognized that "civil rights pleadings should be construed liberally." Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995). The complaint, however, must at the very least contain facts that state a claim as a matter of law and must not be conclusory. Id. Broad and conclusory statements unsupported by factual allegations are not sufficient. Ellingburg v. King, 490 F.2d 1270 (8th Cir. 1974). Finally, although pro se complaints are to be construed liberally, "they must still allege facts sufficient to support the claims advanced." Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). The court is not required to supply additional facts for a pro se plaintiff, nor construct a legal theory that assumes facts which have not been pleaded. Id. To state a claim for relief under § 1983, a plaintiff must allege sufficient facts to show (1) that the defendants acted under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right. Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010) (internal citations omitted).

DISCUSSION

Although nearly illegible, Harp's complaint appears to allege that the conditions he was subjected to violated the Eighth Amendment's prohibition of cruel and unusual punishment and that he was denied medical treatment in violation of the Eighth Amendment. Although Harp is currently incarcerated at the South Dakota State Penitentiary in Sioux Falls, South Dakota, he was previously incarcerated at Mike Durfee State Prison in Springfield, South Dakota. Some of his claims pertain to his time at Mike Durfee State Prison.

It is well established that deliberate indifference to a prisoner's serious medical needs is prohibited by the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). "A prisoner's Eighth Amendment rights are violated if prison officials show 'deliberate indifference' to the prisoner's 'serious medical needs.' " Olson v. Bloomberg, 339 F.3d 730, 735 (8th Cir. 2003) (quoting Estelle, 429 U.S. at 106). The Eighth Circuit has interpreted this standard to mean that a plaintiff must demonstrate: "(1) that he suffered from objectively serious medical needs and (2) that the prison officials actually knew of but deliberately disregarded those needs." Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000). "A serious medical need is one that has been diagnosed by a physician as requiring treatment or one that is so obvious even a layperson would easily recognize the necessity for a doctor's attention." Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). "Deliberate indifference may be manifested by prison doctors in responding to the prisoner's needs or by prison officials in intentionally denying or delaying access to medical care or intentionally interfering with prescribed treatment." Meloy v. Bachmeier, 302 F.3d 845, 849 (8th Cir. 2002).

Harp alleges that prison officials and doctors have denied him medication he was prescribed on several occasions. "Dr. Wilinga at Mike Durfee State Prison refused me necessary medications; stated I needed medication but DOC Policy prohibited him from ordering it for me." Id. at 5, ΒΆ 3. Harp also claims he was refused prescribed medications while incarcerated at the South Dakota State Penitentiary in Sioux Falls, South Dakota. "Unit Mgr D.t. Munson at SDSP Sioux Falls refused me diabetic [illegible] ordered by doctors saying, 'They cost too much.' " Harp also claims that "Dr. Regere at ...


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