United States District Court, D. North Dakota
Darrell W. Clifford, Plaintiff,
Leann Bertsch, Director of DOCR for the State of North Dakota,, Defendants.
Charles S. Miller, Jr., Magistrate Judge United States
plaintiff, Darrell W. Clifford (“Clifford”), is
an inmate at the North Dakota State Penitentiary. He
initiated the above-entitled action in May 2017 with the
remittance of the civil filing fee and the submission of a
Complaint. He subsequently filed notice of his consent to the
undersigned's exercise of jurisdiction. (Docket No. 4).
This matter is now before the undersigned for initial review
pursuant to 28 U.S.C. § 1915A.
a frequent filer with this court, alleges the following in
the Complaint now before the undersigned for initial review:
Due to the side effects of the medication “Flomax,
” it has caused me or prevented me to experience any
physical arousel. I spoke with PA Deb Houdek in which she
stated that if I discontinue the medication Flomax, that
urinary infection with return.
(Docket No. 2) (errors in original). From the supplemental
material that he filed in conjunction with his complaint, it
appears that he was prescribed Flomax in the spring of 2016
to combat a urinary infection. Whether he is still taking
this medication is unclear. In his prayer for relief, he
requests that “ the defendants in stated claim to
provide me with ‘Speman' & ‘Pro-Plus'
supplements for my physical health, and in addition it will
eliminate my sluggishness and weakness.”
STANDARDS GOVERNING INITIAL REVIEW
enacted the Prison Litigation Reform Act of 1995
(“PLRA”) to address the burden imposed by
prisoner suits that are too often frivolous and without
merit. Jones v. Bock, 549 U.S. 199, 203-04 (2007);
Woodford v. Ngo, 548 U.S. 81, 84 (2006). One of the
reforms enacted as part of the PLRA for cases in which
prisoners are seeking to sue a governmental entity, officer,
or employee requires courts to conduct an early screening to
weed out claims that clearly lack merit. 28 U.S.C. §
1915A. In conducting the screening, the court is required to
identify any cognizable claims and to dismiss the complaint,
or any part of it, that is frivolous, malicious, fails to
state a claim, or seeks monetary relief from an immune
screening a pro se prisoner complaint, the court is
obligated to construe it liberally and hold it to a less
stringent standard than what normally would be required of
attorneys. Id.; see also Federal Express Corp.
v. Holowecki, 552 U.S. 389, 402 (2008); Solomon v.
Petray, 795 F.3d 777, 787 (8th Cir. 2015) (“When
we say that a pro se complaint should be given liberal
construction, we mean that if the essence of an allegation is
discernible . . . then the district court should construe the
complaint in a way that permits the layperson's claim to
be considered within the proper legal framework.”)
(internal quotation marks omitted). This does not mean that
the court must accept everything or anything that is filed by
a prisoner proceeding pro se, however. In enacting
the screening requirement, Congress obviously expected it to
be more than an a ritualistic exercise and that courts would
only allow to go forward those claims that are cognizable,
that seek relief from a non-immune party, and that are not
obviously frivolous or malicious.
the minimal pleading requirements of Rule 8(a)(2) for stating
a cognizable claim, something more is required than simply
expressing a desire for relief and declaring an entitlement
to it. See Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 556 n.3 (2007) (“Twombly”). The
complaint must state enough to “‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting
Twombly, 550 U.S. at 555). Also, it must state
enough to satisfy the “plausibility standard” for
stating a cognizable claim as established in Twombly
and further amplified by the Supreme Court in Ashcroft v.
Iqbal, 556 U.S. 662, 678-84 (2009)
(“Iqbal”). And, even though a pro
se prisoner complaint is entitled to a liberal
construction, these minimal pleading requirements must still
be satisfied. E.g., Story v. Foote, 782
F.3d 968, 969 (“To state a claim, . . . [the pro
se prisoner's] complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.”) (internal quotation
marks omitted and citing Twombly and
Iqbal). Complaints that offer nothing more than
labels and conclusions or a formulaic recitation of the
elements are not sufficient. Twombly, 550 U.S. at
555; Iqbal, 556 U.S. at 680-81. Frivolous claims are
those that are clearly baseless, fanciful, fantastic, or
delusional. See Denton v. Hernandez, 504 U.S. 25,
32-34 (1992). To state a claim under 42 U.S.C. § 1983, a
plaintiff must normally allege a violation of a right secured
by the Constitution or the laws of the United States and that
the alleged deprivation was committed by a person acting
under color of state law. West v. Atkins, 487 U.S.
42, 48 (1988); Walker v. Reed, 104 F.3d 156, 157
(8th Cir. 1997). Even under liberal pleading standards, a
pro se litigant, at the very least, must invoke
rights under the Constitution or federal law in order to
plead a § 1983 claim. Walker v. Reed, 104 F.3d
at 157-58. Also, the pleading must allege a sufficient causal
link between the alleged violation and the basis upon which
the particular defendant is to be held responsible, keeping
in mind that persons sued in their individual capacities must
be personally involved or directly responsible since §
1983 does not impose respondeat superior liability.
Iqbal, 556 U.S. at 676-77; Gordon v.
Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999)
the court is not required to ignore facts that are pled by a
prisoner when they undermine the prisoner's claim. The
court may accept as true all facts pled in the complaint and
conclude from them that there is no claim as a matter of law.
E.g., Thompson v. Ill. Dep't of Prof'l
Regulation, 300 F.3d 750, 753-54 (7th Cir. 2002) (citing
when afforded the most liberal of constructions, it is clear
that Clifford's Complaint fails to meet the most basic
pleading requirements. Clifford does not explicitly allege
that he suffers from an objectively serious medical
impairment,  that defendants have been deliberately
indifferent to it, or that defendants have otherwise engaged
in any constitutionally suspect conduct. Rather, he appears
to take issue with the NDSP's refusal in May 2016 to
provide with herbal supplements that he believes would
address/offset his lack of sexual arousal, which he intimates
is a side effect of Flomax.
it is not clear from Clifford's complaint that he was
still taking Flomax at the time he initiated this action.
Second, it is well settled that an inmate's disagreement
with his treatment or his insistence on a particular course
of treatment are not actionable under the guise of a §
1983 action. Thus, absent more, the NDSP's refusal to
provide Clifford with herbal supplements as requested or
otherwise provide him with the treatment of his preference is
not actionable under the guise of a § 1983 action.
See Blackwell v. Selig, 26 Fed. App'x 991 (8th
Cir. 2001) (citing Vaughan v. Lacey, 49 F.3d 1344,
1346 (8th Cir.1995), for the proposition that an inmate's
disagreement as to proper course of treatment is not
actionable under Eighth Amendment); see also Long v.
Nix, 86 F.3d 761, 766 (8th Cir. 1996) (“[N]othing in
the Eighth Amendment prevents prison doctors from exercising
their independent medical judgment . . . . Prisoners do not
have a constitutional right to any particular type of
treatment . . . . Prison officials do not violate the Eighth
Amendment when, in the exercise of their professional
judgment, they refuse to implement a prisoner's ...