Ennis v. Dasovick

Decision Date09 September 1993
Docket NumberNo. 920339,920339
PartiesEdward ENNIS, individually and on behalf of all others similarly situated, Plaintiff and Appellant, v. Mary DASOVICK, Medical Director, North Dakota State Penitentiary; Jeanne Folmer, Clerk, North Dakota State Penitentiary; Timothy Schuetzle, Warden, North Dakota State Penitentiary; and Elaine Little, Director, Department of Corrections and Rehabilitation, State of North Dakota; and other unknown parties; individually and in their official capacities, Defendants and Appellees. Civ.
CourtNorth Dakota Supreme Court

Edward Ennis, pro se.

Jean R. Mullen, Asst. Atty. Gen., Atty. Gen. Office, Bismarck, for defendants and appellees.


Edward Ennis's glasses are broken. He is an inmate at the State Penitentiary and wants the State to buy him a new pair. Seeking new glasses, Ennis brought a civil rights action on behalf of himself and "all others similarly situated." He sued the director of corrections, the warden, the medical director, a medical records clerk and "other unknown parties." Under Rule 12(b), N.D.R.Civ.P., the district court, on its own motion, dismissed Ennis's suit with prejudice for failure to state a claim upon which relief can be granted. Although Ennis may not sue on behalf of others, nor proceed against the unnamed "others," we conclude he has stated a claim for which relief can be granted. We, therefore, affirm in part, reverse in part, and remand for further proceedings.


Ennis alleges that on March 27, 1992, he formally notified Mary Dasovick, the medical director at the State Penitentiary, that his eyeglasses had been broken. Ennis alleges he has worn prescription eyeglasses for 28 years and "they are medically necessary for him to have correct vision." He requested an eye examination.

On April 10, 1992, Ennis says Jeanne Folmer, a medical records clerk at the penitentiary, advised him the frame for his eyeglasses was out of manufacture and a different frame and lenses would have to be ordered. Folmer said the frame could be temporarily repaired for $4 but he must sign to authorize transfer of the money from one of his penitentiary accounts. Ennis had 47cents in his "spendable" account and $150 in his temporary aid ("T.A.") account. Ennis contends the T.A. funds cannot be used until his release from prison.

After an eye examination by an optometrist on May 5, 1992, Ennis was told he could "pick out" a new pair of eyeglasses for $146. Ennis refused to sign the order form for the eyeglasses because, he contends, it stated he agreed to pay for them. Dasovick told Ennis that he would receive no new eyeglasses because penitentiary policy permitted only one free pair paid for by the State and Ennis had received his free pair two years earlier. 1 He further claims two other prisoners had received new eyeglasses without having to pay for them. Ennis appealed having to pay for the new "medically prescribed eyeglasses" to Elaine Little, Director of the Department of Corrections and Rehabilitation. Little upheld Dasovick's decision. Ennis claims he suffers "severe eye strain, eye deterioration, headaches, and mental anguish" because of the penitentiary's refusal to provide him with new eyeglasses.

In August 1992, Ennis brought this 42 U.S.C. § 1983 action against Dasovick, Folmer, Little, and Warden Timothy Schuetzle in their individual and official capacities seeking damages, a declaratory judgment, and an injunction for the defendants' alleged deliberate indifference to his serious medical needs violating the federal and state constitutions. He alleges the defendants' attempted seizure of his money violated N.D.C.C. § 12-48-15(1) and (4). Ennis submitted a petition to proceed in forma pauperis, which was granted by the trial court, and a motion for appointment of counsel.

In October 1992, the trial court, on its own initiative, ordered dismissal of Ennis's action. The trial court concluded:

"The gravamen of this action is that the penitentiary won't provide free eyeglasses to him.

"Whether they do or don't have to isn't directly decided by the order today. And very probably they don't. See Fant v Fischer [Fisher], 414 F.Supp. 807 (W.D.Okla.1976).

"And even if they did, it can't be ordered by injunction. Injunction prohibits the doing of an act or requires the status quo to be maintained. Chapter 32-06, N.D.C.C. Even were this action treated as one in mandamus (to compel the doing of an act) under Chapter 32-34, N.D.C.C., there is no clear right of relief in this case. Fant, supra, at 808-809.

* * * * * *

"The second issue raised is Mr. Ennis' request for court-appointed counsel. That request is denied as being outside the constitutional or statutory authority of this court. And if not, an appointment here is unwarranted as surely this is not an 'exceptional case of public interest.' It is only Mr. Ennis' personal interest which is involved and seeks vindication.

"The plaintiff's various motions are ordered denied and the action itself is ordered dismissed."

Ennis appealed.


In an appeal from a Rule 12(b) dismissal, we construe the complaint in the light most favorable to the plaintiff, taking as true the allegations in the complaint. Livingood v. Meece, 477 N.W.2d 183, 188 (N.D.1991). A trial court may, on its own initiative, and in the cautious exercise of its discretion, dismiss a complaint for failure to state a valid claim under Rule 12(b), N.D.R.Civ.P. Patten v. Green, 397 N.W.2d 458, 459 (N.D.1986). This power must be exercised sparingly and with great care to protect the rights of the parties. Albrecht v. First Federal Sav. & Loan Ass'n, 372 N.W.2d 893, 894 (N.D.1985). A trial court should dismiss under Rule 12(b) only when certain it is impossible for the plaintiff to prove a claim for which relief can be granted. Livingood at 188.


Deliberate indifference to a prisoner's serious medical needs violates the eighth amendment to the United States Constitution. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In Estelle, 429 U.S. at 102, 103, 97 S.Ct. at 290, 50 L.Ed.2d at 259, the Supreme Court ruled that, following the "broad and idealistic concepts of dignity, civilized standards, humanity, and decency" embodied in the eighth amendment, the government must "provide medical care for those whom it is punishing by incarceration." The Estelle standard is two-pronged: whether there has been a deliberate indifference by prison officials, and whether the prisoner's medical needs are serious. Mandel v. Doe, 888 F.2d 783, 788 (11th Cir.1989).

Denial of eyeglasses can, under some circumstances, cause serious harm to a prisoner and constitute an eighth amendment violation. See Newman v. State of Alabama, 503 F.2d 1320, 1331 (5th Cir.1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1975). Whether deprivation of eyeglasses constitutes deliberate indifference to serious medical needs depends on the facts and circumstances of the particular case and the degree of visual impairment suffered by the prisoner.

For example, a plaintiff's allegation in his complaint that he had been deliberately deprived of his eyeglasses although he was legally blind was found to state a cognizable claim for deliberate indifference to serious medical needs in Williams v. ICC Committee, 812 F.Supp. 1029, 1032 (N.D.Cal.1992). Deprivation of eyeglasses under other circumstances has been rejected as constituting an eighth amendment violation. See, e.g., Harris v. Murray, 761 F.Supp. 409, 413 (E.D.Va.1990) [summary judgment dismissing claim was proper where plaintiff alleged only that he was denied reading glasses for 10 days while in segregation; "this treatment is not so harsh as to be cruel and unusual treatment"]; Borrelli v. Askey, 582 F.Supp. 512, 513 (E.D.Penn.), aff'd, 751 F.2d 375 (3rd Cir.1984) [summary judgment dismissing claim was proper where plaintiff alleged only that correction officer refused to allow him to take prescription eyeglasses with him when transferred to another facility and defendants produced optometrist's affidavit that said plaintiff had "very slight visual impairment" and that "he had seen a substantial number of patients with similar readings who had not worn eyeglasses and had not sustained any visual impairment or physical difficulties"]; Nicholson v. Choctaw County, Ala., 498 F.Supp. 295, 308 (S.D.Ala.1980) [a claim was rejected following trial because county jail officials, who "hold prisoners for a relatively short period of time," are under no duty to provide eyeglasses for inmates]; Kersh v. Bounds, 364 F.Supp. 590, 592-593 (W.D.N.C.1973), reversed on other grounds, 501 F.2d 585 (4th Cir.1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1120, 43 L.Ed.2d 394 (1975) [a claim was properly dismissed because "stipulated facts are not developed sufficiently to show that Rogers' eyesight was so bad and lighting conditions of the prison were so poor that to deny him eyeglasses and thus the opportunity to read and write ... violates his right not to be subject to cruel and unusual punishment"]; De Flumer v. Dalsheim, 122 A.D.2d 872, 873, 505 N.Y.S.2d 919, 920 (1986) [a claim for metal frame glasses instead of plastic frame glasses should have been dismissed where prison optometrist who prescribed plastic frame glasses stated in affidavit that "metal frame glasses were not necessary or medically indicated"].

To state a constitutional claim under § 1983, the plaintiff must allege facts tending to show that the defendants were deliberately indifferent to the plaintiff's serious medical needs and that they acted under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-2255, 101 L.Ed.2d 40, 48-49 (1988). There is no heightened pleading standard in § 1983 civil rights actions. See Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, ----, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517, 524 (1993). Construing the complaint in the light most favorable to Ennis,...

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