United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
A. Eifert, United States Magistrate Judge
before the Court is Plaintiff's Application to Proceed
Without Prepayment of Fees and Costs, (ECF No. 1), and
Plaintiff's Complaint filed pursuant to 42 U.S.C. §
1983, (ECF No. 2). The undersigned notes that Plaintiff's
Application is incomplete. Before the Application can be
accepted for review, Plaintiff must fill out the first page
and submit it to the Clerk of Court. For that reason,
Plaintiff is hereby ORDERED to pay the
filing fee of $400, or submit to the Court an amended
Application to Proceed Without Prepayment of Fees and Costs,
which includes the completed first page of the form.
Plaintiff is notified that failure to pay
the fee or submit the application as instructed within
thirty (30) days of the date of this Order
shall result in a recommendation that the complaint be
keeping with 28 U.S.C. § 1915(e)(2), the undersigned has
conducted a preliminary review of Plaintiff's complaint
to determine if the action is frivolous, fails to state a
claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief.
Although pro se complaints, such as the one filed in
this case, must be liberally construed to allow the
development of potentially meritorious claims, the court may
not rewrite the pleading to include claims that were never
presented, Parker v. Champion, 148 F.3d 1219, 1222
(10th Cir. 1998), develop the plaintiff's legal theories
for him, Small v. Endicott, 998 F.2d 411, 417-18
(7th Cir. 1993), or “conjure up questions never
squarely presented” to the court. Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). At the
same time, to achieve justice, the court may allow a pro
se plaintiff the opportunity to amend his complaint in
order to correct deficiencies in the pleading. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
alleges that he fell off the loading dock at the Western
Regional Jail on May 11, 2016, injuring his back and foot. He
was taken to the medical unit and was told that he was fine.
Plaintiff's back continued to hurt, and he complained
daily to the Jail staff. Days later, Plaintiff was taken to
St. Mary's Medical Center for a MRI. Plaintiff asks to be
compensated for pain, suffering, mental anguish, anxiety,
emotional distress, feelings of worthlessness, and being
unable to work. (ECF No. 2). As currently written,
Plaintiff's complaint fails to state a claim that can
withstand initial review.
Eighth Amendment to the United States Constitution requires
the State to provide its prison inmates with basic medical
care. Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976). A prison official violates this
constitutional guarantee when he responds to a prisoner's
serious medical need with deliberate indifference.
Estelle, 429 U.S. at 104; Farmer v.
Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d
811 (1994). Therefore, to state a cognizable Eighth Amendment
claim, an inmate must meet two prongs, one objective and one
subjective. First, the inmate must demonstrate the existence
of a medical condition or need that is objectively serious.
Estelle, 429 U.S. at 104. Second, the inmate must
show that the official subjectively knew of, but disregarded,
“an excessive risk to inmate health or safety.”
Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct.
1970, 128 L.Ed.2d 811 (1994). A prison official is not liable
under the Eighth Amendment if a reasonable response is made,
“even if the harm ultimately [is] not averted.”
Odom v. South Carolina DOC, 349 F.3d 765, 770 (4th
Cir. 2003) (citing Farmer, 511 U.S. at 844). To
establish that a prison official's actions constitute
deliberate indifference to a serious medical need, “the
treatment must be so grossly incompetent, inadequate or
excessive as to shock the conscience or to be intolerable to
fundamental fairness.” Miltier v. Beorn, 896
F.2d 848, 851 (4th Cir. 1990). Accordingly, Plaintiff must
set forth facts in his complaint that meet the standard of an
Eighth Amendment violation. A mere difference of opinion
about whether medical care is needed is usually insufficient
to maintain a valid cause of action. Therefore, when and if
Plaintiff amends his complaint to assert an Eighth Amendment
claim, he should bear these standards in mind.
addition to the legal principles set forth above,
Plaintiff's claim is governed by the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(e).
The PLRA expressly prohibits the filing of civil actions by
prisoners “confined in a jail, prison, or other
correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of
physical injury.” (emphasis added). Although
the PLRA does not define “physical injury” and
the Fourth Circuit has not provided a definition, other
courts have held that the “physical injury”
referenced by the Act need not be significant, but it must be
more than de minimis. See, e.g., Flanory v.
Bonn, 604 F.3d 249, 254 (6th Cir. 2010); Mitchell v.
Brown & Williamson Tobacco Corp., 294 F.3d 1309,
1312-13 (11th Cir. 2002); Siglar v. Hightower, 112
F.3d 191 (5th Cir. 1997); Zehner v. Trigg, 952
F.Supp. 1318 (S.D. Ind. 1997). In addition, “[a]
plaintiff seeking compensatory damages for emotional distress
cannot rely on conclusory statements that the plaintiff
suffered emotional distress [or] the mere fact that a
constitutional violation occurred, but, rather, the testimony
must establish that the plaintiff suffered demonstrable
emotional distress, which must be sufficiently
articulated.” Knussman v. Maryland, 272 F.3d
625, 640 (4th Cir. 2001), quoting Price v. City of
Charlotte, 93 F.3d 1241, 1254 (4th Cir. 1996) (internal
quotation marks omitted).
light of the governing standards and principles, Plaintiff
must amend his complaint in order for the undersigned to
complete a preliminary review of the merits and rule on the
motion to proceed in forma pauperis. Without such an
amendment, Plaintiff's complaint will be subject to
dismissal. Therefore, Plaintiff is ORDERED
to amend his complaint within forty-five (45)
days and cure the following deficiencies in pleading
as indicated below:
Plaintiff must set forth a factual basis upon which the Court
can conclude that the defendants were deliberately
indifferent to a serious medical need. Accordingly, Plaintiff
must include factual allegations setting forth the
nature of his serious medical need and describing how each
individual defendant was made aware of the need, but
deliberately ignored it.
Plaintiff must identify the nature of the physical and
emotional injuries he claims to have suffered as a result of
the alleged wrongdoing. At a minimum, Plaintiff must include
in the complaint the injuries to his back and foot that were
diagnosed at St. Mary's Medical Center.
is hereby given notice that a failure to amend the
complaint as ordered may result in a recommendation that the
complaint be dismissed for failure to state a claim under 42
U.S.C. § 1983 and/or for failure to prosecute under
Fed.R.Civ.P. 41 and L. R. Civ. P. 41.1. Plaintiff is
also reminded of his obligation to promptly notify
the Clerk of Court of any change in his contact information.
Application to Proceed Without Prepayment of Fees and Costs,
(ECF No. 1), shall be held in abeyance pending initial review
of Plaintiffs amended complaint ...