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”
How later courts described this case
- 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”
- “If the complaint does not specifically name the defendant in his individual capacity, it is presumed he is sued only in his official capacity”
- “[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”
- 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”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEVONTE L. LITTLE, )
Plaintiff,
V. No. 4:19-cv-01391-DDN
CORIZON, et al., )
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the motion of plaintiff Devonte L. Little 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, the Court will order plaintiff to file a supplement to his complaint, indicating whether or
not he is suing Nurse Knox in an individual capacity.
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. Jd.
Plaintiff has failed to submit an inmate account statement along with his motion for leave
to proceed in forma pauperis. Review of plaintiffs motion indicates that plaintiff does not appear
to have a source of income. As a result, 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 the initial partial filing fee, he must submit a
copy of his prison 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).
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.” /d. 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. /d. 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 (8" Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73
(8 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 (8" 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 (8"" Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8"
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 is a pretrial detainee currently incarcerated at the St. Louis City Justice Center
(SLCJC) in St. Louis, Missouri. He brings this action pursuant to 42 U.S.C. § 1983. His complaint
names Corizon, Nurse Unknown Knox, and Dr. Unknown Fuentes as defendants. Dr. Fuentes is
sued in both an official capacity and individual capacity. Plaintiff does not indicate the capacity in
which he is suing Nurse Knox.
On July 31, 2018, while detained at the SLCIJC, plaintiff reported a severe headache to the
housing unit officer. (Docket No. 1 at 4). Plaintiff also advised that on December 9, 2016, he had
been shot in the head. He was directed to fill out a medical service request form (MSR), which he
did. Plaintiff states that he received no immediate response, despite filling out “numerous” MSRs.
On August 24, 2018, a medical emergency was called due to plaintiff's headache, blurry
vision, and trouble breathing. Plaintiff states that Nurse Knox came to the unit. According to
plaintiff, Nurse Knox said that plaintiff did not do “anything but...complain about a headache.”
Nurse Knox took his vitals and sent him back to his cell. Over the next few weeks, plaintiff asserts
that his headache and eye vision continued to worsen.
At some point, plaintiff demonstrated to Nurse Knox that he could no longer open his left
eye completely. (Docket No. 1 at 3). He also told her about his headaches. However, plaintiff
alleges that Nurse Knox told him that “headaches are normal.”
When plaintiff met with Dr. Fuentes, he requested emergency medical attention. Plaintiff
claims, however, that Dr. Fuentes offered him only a pain pill for his headaches. He also states
that Dr. Fuentes advised him that headaches can be caused by stress, and that his blurry vision was
a result of his needing glasses. Dr. Fuentes then referred plaintiff to mental health, where he was
prescribed a sleeping pill. (Docket No. 1 at 3; Docket No. 1-1 at 1-2).
On September 28, 2018, plaintiff states that he woke with the vision in his left eye
completely gone. (Docket No. 1 at 4). Medical was notified and he was taken to the Saint Louis
University Hospital. He claims that an ophthalmologist there diagnosed him with a blood clot in
his brain. (Docket No. 1-1 at 4). He further claims that he suffered irreparable damage to his eye.
Plaintiff is seeking payment of his medical bills and $700,000 in punitive damages. (Docket
No. 1 at 7).
Discussion
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. He has named Corizon, Dr.
Fuentes, and Nurse Knox as defendants. Dr. Fuentes is sued in both an official capacity and
individual capacity. However, plaintiff has failed to indicate the capacity in which he is suing
Nurse Knox.
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 (8" Cir.
2007). However, if a plaintiff's complaint is silent about the capacity in which the defendant is
being sued, the complaint is interpreted as including only official capacity claims. Jd. See also
Johnson vy. Outboard Marine Corp., 172 F.3d 531, 535 (8" 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 (8" 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 (8 Cir. 1995) (“Ifa 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 (8 Cir. 2017). Thus, a
“suit against a public employee in his or her official capacity is merely a suit against the public
employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8" Cir. 1999). As Nurse Knox
is alleged to be a Corizon employee, the official capacity claim against her is actually directed
against Corizon. To support a claim against Corizon, plaintiff “must show that there was a policy,
custom, or official action that inflicted an actionable injury.” See Johnson v. Hamilton, 452 F.3d
967, 973 (8" Cir. 2006). Plaintiff has not done this, meaning that his claim against Nurse Knox is
subject to dismissal.
Taking into consideration the fact that plaintiff is proceeding pro se and in forma pauperis,
the Court will instruct him to file a written supplement to his complaint. The supplement must
indicate whether or not he desires to sue defendant Nurse Knox in an individual capacity. Plaintiff
is advised that he must sign the supplement to his complaint and return it to the Court within thirty
days of the date of this order.
Motion for Appointment of 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 (8" Cir. 2013). 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 (8"" 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 (8"" Cir. 2006).
After reviewing these factors, the Court finds that the appointment of counsel is not
warranted. Plaintiff has demonstrated, at this point, that he can adequately present his claims to
the Court. Additionally, neither the factual nor the legal issues in this case appear to be complex.
The Court will entertain future motions for appointment of counsel as the case progresses.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion 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 thirty (30) 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 not issue process or cause
process to issue upon the complaint at this time.
IT IS FURTHER ORDERED that plaintiff shall file a written supplement to his
complaint within thirty (30) days of the date of this order, stating whether or not he is suing
defendant Nurse Knox in an individual capacity.
IT IS FURTHER ORDERED that plaintiffs failure to supplement his complaint in
accordance with this Court’s instructions will result in the Court construing his claim against Nurse
Knox to be in her official capacity only.
Dated this 4% of © A tren. 19. . TD) toce.
UNITED STATES MAGISTRATE JUDGE