# Pearson v. Gittemeier

> District Court, E.D. Missouri · October 24, 2019

URL: https://www.frixlaw.com/law-library/cases/10232001

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** October 24, 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/10232001

## 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 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”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
JEREMY BRADLEY PEARSON, )
Plaintiff, )
V. No. 2:19-cv-00041-RLW
FRANK GITTEMEIER, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter is before the Court on review of plaintiffs second amended complaint pursuant
to 28 U.S.C. § 1915. For the reasons discussed below, the Court will direct the Clerk of Court to
issue process on defendants Frank Gittemeier and Charles Peepers in their individual capacities.
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.” Jd. 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).
Background
Plaintiff is a pro se litigant currently incarcerated at the Moberly Correctional Center
(MCC) in Moberly, Missouri. On May 23, 2019, he filed a civil rights complaint pursuant to 42
U.S.C. § 1983, naming Frank Gittemeier and Charles Peepers as defendants. (Docket No. 1). In
the complaint, plaintiff alleged that excessive force was used against him, and that following this
use of force, he was denied medical care. (Docket No. 1 at 4). Defendants were sued in both their
official and individual capacities. (Docket No. 1 at 2-3). Along with the complaint, plaintiff also
filed a motion for leave to proceed in forma pauperis and a motion to appoint counsel. (Docket
Nos. 2-3).

On July 12, 2019, plaintiff filed a motion for leave to amend his complaint. (Docket No.
4). In the motion, plaintiff stated that he needed to amend his complaint to be “more specific to the
actual event itself, what led up to it, the wrong committed to me, the [injury] and the relief that I
am seeking.” However, plaintiff did not attach a proposed amended complaint to the motion.
On July 16, 2019, the Court granted plaintiff's motion for leave to proceed in forma
pauperis and assessed an initial partial filing fee. (Docket No. 6). The Court also denied plaintiff's
motion for appointment of counsel. Finally, the Court denied plaintiff's motion to amend because
he had not submitted a proposed amended complaint with the motion. The Court directed the Clerk
of Court to send plaintiff a copy of the Court’s prisoner civil rights form, and gave him thirty days
in which to file a motion to amend, along with a proposed amended complaint.
On July 25, 2019, before plaintiff received a copy of the Court’s July 16, 2019 order,
plaintiff filed a motion to correct a docket entry that incorrectly listed him as the defendant.
(Docket No. 7). Plaintiff also filed an amended complaint (Docket No. 8), a motion for leave to
proceed in forma pauperis (Docket No. 9), and a motion to appoint counsel (Docket No. 10).
Shortly thereafter, plaintiff received the Court’s order of July 16, 2019, and filed a motion
to amend on July 29, 2019. (Docket No. 11). Along with the motion, he included a proposed
amended complaint. (Docket No. 12).
The Court will treat the amended complaint received on July 29, 2019 as the operative
complaint, superseding the previous complaints. However, the Court has also reviewed the exhibits
attached to plaintiff's original complaint, as requested. See Fed. R. Civ. P. 10(c) (“A copy of a
written instrument that is an exhibit to a pleading is part of the pleading for all purposes”).

The Amended Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. He names Captain Frank
Gittemeier and Sergeant Charles Peepers as defendants. (Docket No. 12 at 2-3). Both men are
correctional officers at MCC. They are sued in their individual capacities only.
On January 13, 2019, while an inmate at MCC, plaintiff was placed on suicide watch.
(Docket No. 12 at 3). According to plaintiff, he was “mentally broken and suicidal.” At around
4:00 p.m., Captain Gittemeier came to plaintiff's cell to speak with him “regarding a discrepancy
[he] had with food service.” Captain Gittemeier advised plaintiff that he had heard plaintiffs name
“over the radio numerous times over the last three days,” and that if he heard plaintiff's name one
more time, he was going to “set [plaintiffs] ass on fire.” Plaintiff states that Captain Gittemeier
then denied him his evening meal.
At around 7:00 p.m., plaintiff asked Correctional Officer House for some tissue paper.
Plaintiff used this tissue paper to cover a light fixture, in order to dim the light so he could sleep.
(Docket No. 1 at 4). At no point was he told to remove the tissue.
Plaintiff states that around 9:00 to 9:30 p.m., Captain Gittemeier opened his cell door.
Plaintiff stood up and was immediately “hit in the face with mace.” He tried to turn his back, to
avoid getting the mace in his face and eyes. He alleges that Captain Gittemeier emptied the entire
contents of one can, before yelling: “Get it off the camera. Get it off the camera.” Plaintiff told
Captain Gittemeier that nothing was on the camera. Captain Gittemeier then began spraying
plaintiff with a second can of mace. Plaintiff claims that he took the tissue off the light, but that
Captain Gittemeier kept spraying him. He alleges that Captain Gittemeier never gave him a
command before spraying him. He further alleges that he was not being disorderly or threatening
to himself or others.

Sergeant Peepers was present with a video camera when Captain Gittemeier deployed his
mace. (Docket No. 12 at 5). Plaintiff claims that he failed to intervene while Captain Gittemeier
emptied both cans. He further asserts that Captain Gittemeier and Sergeant Peepers would not
allow him to go to medical to wash the mace from his face and eyes. (Docket No. 12 at 4).
After the officers left, plaintiff attempted to wash the mace off by using the sink in his cell.
(Docket No. 12 at 5). He claims that he began to hyperventilate and lost consciousness. When he
regained consciousness, he was on the floor. As a result of his fall, he fractured his nose. Plaintiff
states that he had a seizure, and that he has been treated for a history of seizures in the past.
Plaintiff reported his seizure and Sergeant Peepers came to speak with him. He states that
he explained the situation to Sergeant Peepers, and said that he needed to go to medical. According
to plaintiff, Sergeant Peepers said he had not seen plaintiff lose consciousness, and walked away.
Plaintiff accuses Captain Gittemeier of using excessive force in violation of his
constitutional rights. (Docket No. 12 at 4). He further accuses Sergeant Peepers of failing to
intervene and of being deliberately indifferent to his medical needs. (Docket No. 12 at 5). As a
result of this incident, plaintiff states that he suffered a fractured nose, which has caused him
breathing difficulties. (Docket No. 12 at 4).
Plaintiff seeks $500,000 in compensatory damages from each defendant, $500,000 in
punitive damages from each defendant, and for a medical procedure to fix his nose. (Docket No.
12 at 6).
Discussion
Plaintiff brings this civil action pursuant to 42 U.S.C. § 1983, alleging that his
constitutional rights were violated by Captain Gittemeier’s use of excessive force, and by Sergeant
Peepers’ failure to intervene and denial of medical care. Defendants are sued in their individual

capacities only. For the reasons discussed below, the Court will direct the Clerk of Court to issue
summons on both defendants.
A. Excessive Force Against Officer Gittemeier
Plaintiff alleges that Captain Gittemeier used excessive force against him. The Eighth
Amendment forbids the “unnecessary and wanton infliction of pain” constituting cruel and unusual
punishment. Hudson v. McMillan, 503 U.S. 1, 9-10 (1992). See also Burns v. Eaton, 752 F.3d
1136, 1138 (8" Cir. 2014) (“After incarceration, only the unnecessary and wanton infliction of
pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment’). When a
prison official is accused of using excessive physical force in violation of the Eighth Amendment,
the core judicial inquiry is “whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Jackson v. Gutzmer, 866 F.3d 969, 974
(8" Cir. 2017). See also Ward v. Smith, 844 F.3d 717, 721 (8 Cir. 2016) (“Because the use of
force is sometimes required in prison settings, guards are liable only if they are completely
unjustified in using force, i.e., they are using it maliciously and sadistically”). The factors to be
considered in determining whether force was used in good faith include “the need for the
application of force, the relationship between the need and the amount of force that was used, and
the extent of injury inflicted.” Whitley v. Albers, 475 U.S. 312, 321 (1986).
Here, plaintiff alleges that Captain Gittemeier entered his cell and, without issuing any
commands or warnings, discharged two cans of mace at him. Plaintiff asserts that he was in
compliance and not posing a threat to others or himself. Shortly before this incident occurred,
plaintiff had an interaction with Captain Gittemeier in which Gittemeier threatened to “set
[plaintiffs] ass on fire.” The Court must accept these allegations as true. See Jones v. Douglas Cty.
Sheriff's Dep’t, 915 F.3d 498, 499 (8" Cir. 2019) (stating that court must accept the allegations

contained in the complaint as true, and make all reasonable inferences in favor of the plaintiff). As
such, plaintiff's excessive force claim against Captain Gittemeier in his individual capacity is
sufficient for purposes of § 1915 review.
B. Failure to Intervene and Deliberate Indifference Claims Against Sergeant Peepers
Plaintiff alleges that Sergeant Peepers failed to intervene to stop Captain Gittemeier’s use
of mace against him. The Eighth Amendment imposes upon prison officials the obligation to
restore control in tumultuous situations. Buckner v. Hollins, 983 F.2d 119, 121 (8 Cir. 1993). As
such, under § 1983, a correctional officer can be held liable for failing to intervene in another
officer’s constitutional violation. See Putman vy. Gerloff, 639 F.2d 415, 423 (8" Cir. 1981)
(determining that a deputy could be held “jointly liable for failing to intervene if a fellow
officer...was using excessive force and otherwise was unlawfully punishing the prisoner”); and
Buckner, 983 F.2d at 121-22 (determining that state corrections officer had a duty to intervene on
behalf of inmate being assaulted by a county corrections officer). “A prison official acts with
deliberate indifference to an inmate’s safety when the official is present at the time of an assault
and fails to intervene or otherwise act to end the assault.” Williams v. Mueller, 13 F.3d 1214, 1216
(8" Cir. 1994).
Here, plaintiff alleges that Sergeant Peepers was present, with a video camera, when
Captain Gittemeier came into his cell and immediately began spraying him with mace. During this
incident, plaintiff asserts that he was not disobeying any commands, refusing to comply, or acting
in a threatening manner. Nonetheless, Captain Gittemeier continued to spray him, while Sergeant
Peepers did not attempt to intervene or otherwise act to end the alleged assault. Accepting these
allegations as true, plaintiff's failure to intervene claim against Sergeant Peepers in his individual
capacity is sufficient for purposes of § 1915 review. .

Plaintiff also alleges that Sergeant Peepers was deliberately indifferent to his medical
needs. In order to establish deliberate indifference, a plaintiff must prove that he suffered from an
objectively serious medical need, and that prison officials actually knew of and disregarded that
need. Roberts v. Kopel, 917 F.3d 1039, 1042 (8" Cir. 2019). See also Phillips v. Jasper Cty. Jail,
437 F.3d 791, 795 (8" Cir. 2006). “A serious medical need is one that has been diagnosed by a
physician as requiring treatment, or one that is so obvious that even a layperson would easily
recognize the necessity for a doctor’s attention.” Coleman v. Rahija, 114 F.3d 778, 784 (8" Cir.
1997). Deliberate indifference can include the intentional denial or delay of access to medical care,
or the intentional interference with treatment or prescribed medication. Vaughn v. Lacey, 49 F.3d
1344, 1346 (8" Cir. 1995).
Here, plaintiff states that after being sprayed with mace, he began hyperventilating, had a
seizure, and lost consciousness. When he regained consciousness, he was on the floor, and had
injured his nose. Plaintiff alleges that he requested medical attention and explained the situation to
Sergeant Peepers, including the fact that plaintiff was being treated for seizures. According to
plaintiff, Sergeant Peepers responded by saying: “Well I didn’t see it so [you’re] beat.” To plaintiff,
this indicated Sergeant Peepers’ intent to punish him by denying him medical care. After making
this statement, Sergeant Peepers walked away. Accepting these allegations as true, plaintiffs
deliberate indifference to medical needs claim against Sergeant Peepers in his individual capacity
is sufficient for purposes of § 1915 review.
C. Motion to Correct Complaint
Plaintiff has filed a document titled motion to correct complaint. (Docket No. 7). In the
motion, plaintiff observes that in the docket text entries for Docket No. 1 and Docket No. 12, he
is incorrectly listed as the defendant. This motion will be granted, and the Clerk of Court will be

directed to correct the docket text entries in Docket No. 1 and Docket No. 12 to reflect the fact that
Jeremy Bradley Pearson is the plaintiff in this case, not a defendant.
D. Motion to Proceed in Forma Pauperis
Plaintiff has filed a second motion for leave to proceed in forma pauperis. (Docket No. 9).
The Court has already granted plaintiff leave to proceed in forma pauperis, and has assessed an
initial partial filing fee of $1.70, which has been paid. The Court will therefore deny plaintiff's
second motion to proceed in forma pauperis as moot.
E. Motion to Appoint Counsel
Plaintiff has filed a second motion for appointment of counsel. (Docket No. 10). 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). 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 (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, 437 F.3d at 794.
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, neither the factual nor the legal issues in this case appear to be
complex. Finally, plaintiff has not demonstrated any change in circumstances since he filed his

prior motion for appointment of counsel, which the Court denied on July 16, 2019. The Court will
entertain future motions for appointment of counsel as the case progresses.
F. Motion to Amend Complaint
Plaintiff has filed a motion to amend his complaint, as directed by the Court in its order of
July 16, 2019. (Docket No. 11). Plaintiff’s motion to amend will be granted.
G. Motion for Status Conference
Plaintiff has filed a pro se motion for status conference. (Docket No. 16). The motion will
be denied. However, the Clerk of Court will be directed to send to plaintiff an updated copy of the
docket sheet, along with the instant memorandum and order.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to correct (Docket No. 7) is
GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall correct the docket text entries
in Docket No. 1 and Docket No. 12 to reflect the fact that Jeremy Bradley Pearson is the plaintiff
in this case, not a defendant.
IT IS FURTHER ORDERED that plaintiffs second motion to proceed in forma pauperis
(Docket No. 9) is DENIED AS MOOT.
IT IS FURTHER ORDERED that plaintiff's second motion for appointment of counsel
(Docket No. 10) is DENIED at this time.
IT IS FURTHER ORDERED that plaintiff's motion to amend (Docket No. 11) is
GRANTED.
IT IS FURTHER ORDERED that plaintiff's motion for status conference (Docket No.
16) is DENIED.

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IT IS FURTHER ORDERED that the Clerk of Court shall send to plaintiff an updated
copy of the docket sheet, along with the instant memorandum and order.
IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause process
to issue on defendant Frank Gittemeier in his individual capacity as to plaintiff's claim of excessive
force. Defendant Gittemeier shall be served in accordance with the waiver agreement this Court
maintains with the Missouri Attorney General’s Office.
IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause process
to issue on defendant Charles Peepers in his individual capacity as to plaintiff's claims of failure
to intervene and deliberate indifference to medical needs. Defendant Peepers shall be served in
accordance with the waiver agreement this Court maintains with the Missouri Attorney General’s
Office.
Dated ice of ily , 2019. °
Rotter ditike
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10232001. Public record. Not legal advice.