The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DISMISSING PLAINTIFFS, GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, AND DISMISSING COMPLAINT IN PART
Plaintiffs, Dean Cochrun, Caleb Summers, Wambli Larson, Cody DeSersa, Thomas Dalton Holley, and Stephen Thompson filed a pro se civil rights lawsuit against defendants. Plaintiffs seek both injunctive relief and money damages. Plaintiffs are incarcerated at the South Dakota State Penitentiary in Sioux Falls, South Dakota.
On May 30, 2012, this court issued a warning notice to plaintiffs, advising them that they would each be individually responsible for the $350 filing fee under the Prison Litigation Reform Act, that they would incur a "strike" if the case were dismissed under 28 U.S.C. § 1915, and that they were each potentially subject to sanctions under Rule 11 of the Federal Rules of Civil Procedure. This court directed plaintiffs to notify the court as to whether they each wished to continue as a plaintiff in this case by July 2, 2012, and advised plaintiffs that if an individual did not respond to the order, then he would be dismissed as a plaintiff in the case. Only Stephen Thompson and Dean Cochrun notified the court that they wished to continue as plaintiffs in the case. Thus, Caleb Summers, Wambli Larson, Cody DeSersa, and Thomas Dalton Holley are dismissed as parties to this case and their respective motions to proceed in forma pauperis (Docket 9, 11, 14) and for court-appointed counsel (Docket 10, 15) are denied as moot.
The remaining plaintiffs, Dean Cochrun and Stephen Thompson, move for leave to proceed in forma pauperis. 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.
Cochrun has indicated the average of the monthly deposits to his account is $25.27, and the average monthly balance of his account is a negative $2.96. See Docket 3, Prisoner Trust Account Report, Dean Cochrun. Cochrun must pay an initial partial filing fee of $5.05, which is 20 percent of $25.27. Thompson has indicated that the average of the monthly deposits to his account is $11.25, and the average monthly balance of his account is a negative $275.75. See Docket 9, Prisoner Trust Account Report, Stephen Thompson. Thompson must make an initial partial filing fee payment of $2.25. Thus, Cochrun and Thompson are granted in forma pauperis status.
But the inquiry does not end there. The PLRA also requires this court to "screen" Cochrun and Thompson'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."
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, 261 Fed. App'x 926, 927 (8th Cir. 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).
I. Cochrun's Mental Health Care Claim Cochrun first asserts that his rights under the Eighth Amendment have been violated by defendants' "failure to provide marriage and family counseling, failure to treat Dean Cochrun's mental condition and depression; failure to treat Jamie Cochrun's mental illness/depression; failure to provide individual counseling for Dean Cochrun; failure to provide individual counseling to Jamie Cochrun; failure to provide nutritional supplements for Jamie Cochrun; and failure to test, treat, and [illegible] for Jamie Cochrun's medical condition." Docket 1 at Count I. Cochrun has not provided any facts in support of these allegations.
It is well established that deliberate indifference to a prisoner's serious mental health care needs is prohibited by the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Sims v. Lay, 216 Fed. App'x 599, 500 (8th Cir. 2007). "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). Cochrun 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). Cochrun has not pleaded sufficient facts to show that he has been actually diagnosed with a mental condition or depression. Nor has Cochrun pleaded facts tending to show that he sought mental health treatment and defendants denied it to him. Because Cochrun has failed to "allege facts sufficient to support the claims advanced," his claim is subject to dismissal. Stone, 364 F.3d at 914.
Cochrun also attempts to raise claims on behalf of his wife, Jamie Cochrun, who is not a party to this action. It appears that Jamie Cochrun is incarcerated at the South Dakota Women's Prison in Pierre, South Dakota. Dean Cochrun does not have standing to raise claims on her behalf. See Smith v. Unknown, No. 06-1046, 2006 WL 3248270 at *2 (W.D. Ark. Aug. 23, 2006) (recommending that inmate's claim be dismissed because he did not have standing to bring claims on behalf of other inmates); see also Powers v. Ohio, 499 U.S. 400, 410-11 (1991) (generally, litigant must assert his or her own legal rights and interests and cannot rest claim to relief on legal rights or interests of third parties). Thus, all ...