# Wilkins v. Hann

> District Court, E.D. Missouri · September 3, 2019

URL: https://www.frixlaw.com/law-library/cases/10231661

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** September 3, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10231661

## How later opinions describe it (automated extraction)

- stating that federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint”
- stating that § 1983 liability “requires a causal link to, and direct responsibility for, the deprivation of rights”
- explaining that official capacity suit against sheriff and his deputy “must be treated as a suit against the County”
- stating that a “plaintiff who sues public employees in their official, rather than individual, capacities sues only the public employer”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

JAMES ANTHONY WILKINS, JR., )
)
Plaintiff, )
)
v. ) No. 1:19-cv-00100-PLC
)
JOSEPH HANN, et al., )
)
Defendants. )

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff James Anthony Wilkins, Jr. for
leave to commence this civil action without prepayment of the required filing fee. (Docket No. 2).
Having reviewed the motion and the financial information submitted in support, the Court has
determined that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial
partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed
below, plaintiff will be directed to file an amended complaint.
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is
required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her
prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial
partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner’s
account, or (2) the average monthly balance in the prisoner’s account for the prior six-month
period. After payment of the initial partial filing fee, the prisoner is required to make monthly
payments of 20 percent of the preceding month’s income credited to the prisoner’s account. 28
U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these monthly
payments to the Clerk of the Court each time the amount in the prisoner’s account exceeds $10.00,
until the filing fee is fully paid. Id.
Plaintiff has not submitted a copy of his inmate account statement. However, his motion
for leave to proceed in forma pauperis states that he receives some income from family and friends.
As such, the Court will require plaintiff to pay an initial partial filing fee of $1.00. See Henderson

v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the Court with
a certified copy of his prison account statement, the Court should assess an amount “that is
reasonable, based on whatever information the court has about the prisoner’s finances”). If plaintiff
is unable to pay that amount, he must submit a copy of his inmate account statement in support of
his claim.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To
state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief,

which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
Determining whether a complaint states a plausible claim for relief is a context-specific task that
requires the reviewing court to draw upon judicial experience and common sense. Id. at 679. The
court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber, 820
F.3d 958, 964 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73
(8th Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not
required to “accept as true any legal conclusion couched as a factual allegation”).
When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit
of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction”
means that if the essence of an allegation is discernible, the district court should construe the

plaintiff’s complaint in a way that permits his or her claim to be considered within the proper legal
framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints
are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.
Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8th
Cir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just
because an additional factual allegation would have formed a stronger complaint”). In addition,
affording a pro se complaint the benefit of a liberal construction does not mean that procedural
rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed
without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

The Complaint
Plaintiff states that he is a convicted and sentenced federal prisoner, currently being held
in the Ste. Genevieve Detention Center in Ste. Genevieve, Missouri. (Docket No. 1 at 2). He brings
this pro se civil action pursuant to 42 U.S.C. § 1983. He names Cape County Police Department
officer Joseph Hann and U.S. Marshal Clark Meadows as defendants. (Docket No. 1 at 2-3).
Plaintiff does not indicate the capacity in which defendants are sued.
Plaintiff asserts that on February 28, 2015, plaintiff was at the Town House Inn in Cape
Girardeau, Missouri. (Docket No. 1 at 3). During an apparent encounter with law enforcement,
plaintiff was shot in the chest by Officer Hann.1 Plaintiff alleges that Deputy Meadows also fired
shots at him. In doing so, plaintiff states they both failed to “perform their [duties] in [a
professional] manner.” He also accuses both defendants of “defamation of character” and slander
to his name.
Plaintiff states that he suffered a gunshot wound to his left chest cavity, which caused

multiple rib fractures and a contusion of his left lung. (Docket No. 1 at 4). He asserts that he
required surgery and the placement of a chest tube, but that the bullet was not removed.
Plaintiff seeks $40 million in damages due to his injury. (Docket No. 1 at 5). He claims
that he is now unable to provide for his family, suffers “constant pain and slight immobility” in
his left side, and that he experiences mental pain, stress, and fear.
Discussion
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging the use of excessive force
during his apprehension by law enforcement officers. For the reasons discussed below, the
complaint is deficient and subject to dismissal under 28 U.S.C. § 1915(e)(2)(B). However, plaintiff

will be given thirty days in which to file an amended complaint consistent with the instructions set
forth in this order.
A. Failure to Allege Capacity
Plaintiff’s complaint is deficient because it fails to allege the capacities in which he is suing
Officer Hann and Deputy Meadows. A plaintiff can bring a § 1983 claim against a public official
acting in his or her official capacity, his or her individual capacity, or both. Baker v. Chisom, 501
F.3d 920, 923 (8th Cir. 2007). However, if a plaintiff’s complaint is silent about the capacity in

1 On March 19, 2015, plaintiff was charged by indictment with being a felon in possession of a firearm. United
States v. Wilkins, No. 1:15-cr-00046-SNLJ-ACL-1 (E.D. Mo.). Upon review of plaintiff’s criminal case, it appears
that the charge stemmed from a February 28, 2015 encounter between plaintiff and law enforcement at the Town
House Inn. During the encounter plaintiff was shot and transported to the hospital.
which the defendant is being sued, the complaint is interpreted as including only official capacity
claims. Id. See also Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“[I]n
order to sue a public official in his or her individual capacity, a plaintiff must expressly and
unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant is sued
only in his or her official capacity”); Artis v. Francis Howell North Band Booster Ass’n, Inc., 161

F.3d 1178, 1182 (8th Cir. 1998) (“If the complaint does not specifically name the defendant in his
individual capacity, it is presumed he is sued only in his official capacity”); and Egerdahl v.
Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995) (“If a plaintiff’s complaint is silent about the
capacity in which she is suing the defendant, we interpret the complaint as including only official-
capacity claims”).
In an official capacity claim against an individual, the claim is actually “against the
governmental entity itself.” See White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017). Thus, a
“suit against a public employee in his or her official capacity is merely a suit against the public
employer.” Johnson, 172 F.3d at 535. See also Brewington v. Keener, 902 F.3d 796, 800 (8th Cir.

2018) (explaining that official capacity suit against sheriff and his deputy “must be treated as a
suit against the County”); Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016)
(stating that a “plaintiff who sues public employees in their official, rather than individual,
capacities sues only the public employer”); and Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir.
2006) (stating that a “suit against a public official in his official capacity is actually a suit against
the entity for which the official is an agent”). In order to prevail on an official capacity claim, the
plaintiff must establish the governmental entity’s liability for the alleged conduct. Kelly, 813 F.3d
at 1075.
Plaintiff has filed his complaint on a Court-provided § 1983 form. The form provides a
space for plaintiff to indicate the capacity in which he is suing the defendants. Plaintiff has left this
space on the Court-form blank. Moreover, he does not otherwise indicate the capacity in which he
is suing Officer Hann and Deputy Meadows elsewhere in the complaint. As such, the Court must
presume that plaintiff is suing defendants in their official capacities only. However, he has failed

to allege any facts that would support an official capacity suit. See Marsh v. Phelps Cty., 902 F.3d
745, 751 (8th Cir. 2018) (recognizing official capacity claims as “claims challenging an
unconstitutional policy or custom, or those based on a theory of inadequate training, which is an
extension of the same”). Thus, plaintiff’s complaint would be subject to dismissal for failure to
state an official capacity claim against either defendant.
B. Failure to State an Excessive Force Claim
Even if plaintiff were not presumed to be suing defendants in their official capacities only,
he has still failed to state a claim of excessive force. Plaintiff’s “Statement of Claim” is extremely
sparse and short of facts. He states only that he was shot by defendants on February 28, 2015,

without providing any other kind of context. However, upon reviewing his criminal case, it seems
that plaintiff was shot at the Town House Inn during an attempt by law enforcement to arrest him.
United States v. Wilkins, No. 1:15-cr-00046-SNLJ-ACL-1 (E.D. Mo.). Thus, plaintiff’s claim is
governed by the Fourth Amendment.
“The Fourth Amendment protects citizens from being seized through excessive force by
law enforcement officers.” Thompson v. City of Monticello, Ark., 894 F.3d 993, 998 (8th Cir. 2018).
See also Andrews v. Fuoss, 417 F.3d 813, 818 (8th Cir. 2005) (“The right to be free from excessive
force is included under the Fourth Amendment’s prohibition against unreasonable seizures of the
person”); and Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000) (“The Fourth Amendment’s
prohibition against unreasonable seizures of the person applies to excessive-force claims that arise
in the context of an arrest or investigatory stop of a free citizen”). The violation of this right is
sufficient to support an action under § 1983. Crumley v. City of St. Paul, Minn., 324 F.3d 1003,
1007 (8th Cir. 2003).
Whether force is excessive under the Fourth Amendment requires a determination of

whether or not law enforcement officers’ actions are “objectively reasonable in light of the facts
and circumstances confronting them, without regard to their underlying intent or motivation.”
Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015). Factors that are relevant to the reasonableness
of an officer’s conduct include “the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.” Burnikel v. Fong, 886 F.3d 706, 710 (8th Cir. 2018).
Here, plaintiff has not provided enough facts to demonstrate that the force used by Officer
Hann and Deputy Meadows was unreasonable, and therefore excessive under the Fourth
Amendment. He does not address such factors as the severity of the crime for which he was being

arrested; whether or not he posed a threat to the safety of the officers; whether or not he had a
weapon; and whether or not he was attempting to resist or evade arrest. Instead, he seems to rely
solely on the fact that the officers used potentially-deadly force against him by discharging their
weapons. However, “it is not constitutionally unreasonable to use deadly force if an officer has
probable cause to believe that the suspect poses a threat of serious physical harm, either to the
officer or others.” Thompson v. Dill, 930 F.3d 1008, 1013 (8th Cir. 2019).
For these reasons, even if plaintiff is presumed to have sued defendants in their individual
capacities, he has failed to state a claim of excessive force against either Officer Hann or Deputy
Meadows.
C. Amendment Instructions
Because plaintiff is proceeding pro se, he will be given an opportunity to amend his
complaint according to the instructions set forth below.
Plaintiff should type or neatly print his complaint on the Court’s civil rights form, which
will be provided to him. See E.D. Mo. L.R. 45 - 2.06(A) (“All actions brought by pro se plaintiffs

or petitioners should be filed on Court-provided forms”). If the complaint is handwritten, the
writing must be legible. In the “Caption” section of the Court-provided form, plaintiff should
clearly name each and every party he is intending to sue. See Fed. R. Civ. P. 10(a) (“The title of
the complaint must name all the parties”). If there is not enough room in the caption, plaintiff may
add additional sheets. However, all the defendants must be clearly listed. Plaintiff should fill out
the complaint form in its entirety.
In the “Statement of Claim” section, plaintiff should provide a short and plain statement of
the factual allegations supporting his claim. See Fed. R. Civ. P. 8(a). Plaintiff should put each
claim into a numbered paragraph, and each paragraph should be “limited as far as practicable to a

single set of circumstances.” See Fed. R. Civ. P. 10(b). Plaintiff should begin by writing the
defendant’s name. In separate, numbered paragraphs under that name, plaintiff should write a short
and plain statement of the factual allegations supporting his claim against that specific defendant.
If plaintiff is suing more than one defendant, he should follow the same procedure for each
defendant.
It is necessary that plaintiff allege facts demonstrating the personal responsibility of the
defendant for harming him. See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (stating
that § 1983 liability “requires a causal link to, and direct responsibility for, the deprivation of
rights”). Furthermore, the Court emphasizes that the “Statement of Claim” requires more than
“labels and conclusions or a formulaic recitation of the elements of a cause of action.” See
Neubauer v. FedEx Corp., 849 F.3d 400, 404 (8th Cir. 2017).
If plaintiff names more than one defendant, it is important that he establish the
responsibility of each separate defendant for harming him. That is, for each defendant, plaintiff
must allege facts showing how that particular defendant’s acts or omissions violated his

constitutional rights. It is not enough for plaintiff to make general allegations against all the
defendants as a group. Rather, plaintiff needs to provide the role of each named defendant in this
case, in order that each specific defendant can receive notice of what he or she is accused of doing.
See Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (stating that the
essential function of a complaint “is to give the opposing party fair notice of the nature and basis
or grounds for a claim”).
Plaintiff must specify whether he intends to sue each defendant in an official capacity, an
individual capacity, or both. The failure to sue a defendant in his or her individual capacity may
result in the dismissal of that defendant.

After receiving the amended complaint, the Court will review it pursuant to 28 U.S.C. §
1915. Plaintiff’s failure to make specific factual allegations against a defendant will result in the
dismissal of that defendant. Plaintiff is warned that the filing of an amended complaint completely
replaces the original complaint. This means that claims that are not re-alleged in the amended
complaint will be deemed abandoned. See In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396
F.3d 922, 928 (8th Cir. 2005) (“It is well-established that an amended complaint supercedes an
original complaint and renders the original complaint without legal effect”). If plaintiff fails to file
an amended complaint on a Court-provided form within thirty days in accordance with the
instructions set forth herein, the Court will dismiss this action without prejudice and without
further notice to plaintiff.
D. Motion to Appoint Counsel
Plaintiff has filed a motion to appoint counsel (Docket No. 3). The motion will be denied
at this time. In civil cases, a pro se litigant does not have a constitutional or statutory right to

appointed counsel. Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013). See also Stevens v. Redwing,
146 F.3d 538, 546 (8th Cir. 1998) (stating that “[a] pro se litigant has no statutory or constitutional
right to have counsel appointed in a civil case”). Rather, a district court may appoint counsel in a
civil case if the court is “convinced that an indigent plaintiff has stated a non-frivolous claim…and
where the nature of the litigation is such that plaintiff as well as the court will benefit from the
assistance of counsel.” Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining
whether to appoint counsel for an indigent litigant, a court considers relevant factors such as the
complexity of the case, the ability of the pro se litigant to investigate the facts, the existence of
conflicting testimony, and the ability of the pro se litigant to present his or her claim. Phillips v.
Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006).

After reviewing these factors, the Court finds that the appointment of counsel is not
warranted at this time. Plaintiff has demonstrated, at this point, that he can adequately present his
claims to the Court. Additionally, he is being ordered to file an amended complaint. The Court
will entertain future motions for appointment of counsel as the case progresses.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis
(Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $1.00
within twenty-one days of the date of this order. Plaintiff is instructed to make his remittance
payable to “Clerk, United States District Court,” and to include upon it: (1) his name; (2) his prison
registration number; (3) the case number; and (4) the statement that the remittance is for an original
proceeding.
IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel (Docket
No. 3) is DENIED at this time.
IT IS FURTHER ORDERED that the Clerk of Court shall send to plaintiff a copy of the
Court’s prisoner civil rights form.
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on the Court-
provided form within thirty (30) days of the date of this order.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this order, this action
will be dismissed without prejudice and without further notice.
IT IS FURTHER ORDERED that upon the filing of an amended complaint, the Court
will review it pursuant to 28 U.S.C. § 1915(e)(2).
Witt. Boden
PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 3" day of September, 2019

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10231661. Public record. Not legal advice.