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Spotted Elk v. Department of Health

United States District Court, D. South Dakota, Southern Division

February 10, 2016

ANDREW GREGORY SPOTTED ELK, Plaintiff,
v.
DEPARTMENT OF HEALTH; DR. BRAD ADAMS, in his official capacity; DR. EUGENE REGIER, in his official capacity, Defendants.

ORDER DISMISSING COMPLAINT

Lawrence L. Piersol United States District Judge

INTRODUCTION

Plaintiff, Andrew Gregory Spotted Elk, filed this pro se lawsuit pursuant to 42 U.S.C. § 1983. He is an inmate at the South Dakota State Penitentiary in Sioux Falls, South Dakota. The Court screened Spotted Elk's complaint pursuant to 28 U.S.C. § 1915A. Spotted Elk moves for leave to proceed in forma pauperis, Docket 2, and to appoint counsel. Docket 4. For the reasons below, the Court grants Spotted Elk's motion to proceed in forma pauperis, dismisses his complaint and denies his motion to appoint counsel.

FACTUAL BACKGROUND

According to his complaint, prison officials took Spotted Elk off of his "nerve pain medication" because of a disciplinary write-up. Docket 1 at 4. The medication had been effective. Id. He alleges that the write-up was later dismissed, but defendants refused to continue his medication. Id. He also claims that he was discriminated against by Dr. Adams and Dr. Regier in their decision to deny him medication. Id. Spotted Elk sues defendants in their official capacities only. Id. at 2.

Spotted Elk claims that he suffered continuous and chronic nerve pain in his lower back, right forearm, hand, and feet. Id. at 4. He also suffered "emotional psychological injuries[.]" Id. His complaint states that he has grieved available administrative remedies and appealed them to the highest level. Id. In relief, Spotted Elk request damages of $250,000 for "physical, mental, emotional, and psychological damage" and "defamation of character within the institutions!.]" Id. at 7. He also requests court costs, legal fees, and attorney's fees. Id.

LEGAL STANDARD

The court must accept the well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights and pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even with this construction, "a pro se complaint must contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). Civil rights complaints cannot be merely conclusory. Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993); Parker v. Porter.

A 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "If a plaintiff cannot make the requisite showing, dismissal is appropriate." Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).

DISCUSSION

Spotted Elk moves this Court to grant him leave to proceed in forma pauperis. Docket 2. His complaint argues that defendants were deliberately indifferent to his medical needs. Docket 1. He also moves this Court to appoint him counsel. Docket 4.

I. Spotted Elk Is Granted Leave To Proceed in Forma Pauperis

Under the Prison Litigation Reform Act (PLRA), a prisoner who "brings a civil action or files an appeal in forma pauperis . . . shall be required to pay the full amount of a filing fee." 28 U.S.C. § 1915(b)(1). Therefore, " '[w]hen an inmate seeks pauper 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) (quoting McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997)).

Spotted Elk has reported average monthly deposits to his prisoner trust account of $0 and an average monthly balance of negative $156.12. Docket 3. Based on this information, the court finds that Spotted Elk is ...


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