Smith v. St. Louis County Department of Justice Services

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JASON NICKOLAS SMITH, )

)

Plaintiff, )

)

v. ) No. 4:19-cv-02116-JCH

)

ST. LOUIS COUNTY DEPARTMENT )

OF JUSTICE SERVICES, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on the motion of plaintiff Jason Nickolas Smith for leave

to commence this civil action without prepayment of the required filing fee. (Docket No. 3).

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 $7.40. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed

below, the Court will order plaintiff 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.

In support of his motion for leave to proceed in forma pauperis, plaintiff submitted an

affidavit and a certified inmate account statement. (Docket No. 4). The inmate account statement

shows an average monthly deposit of $37.00. The Court will therefore assess an initial partial filing

fee of $7.40, which is 20 percent of plaintiff’s average monthly deposit.

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 is a pro se litigant currently incarcerated at the Cape Girardeau County Jail in

Jackson, Missouri. At the time relevant to this complaint, however, he was an inmate at the St.

Louis County Justice Center (SLCJC). (Docket No. 1 at 2). He brings this action pursuant to 42

U.S.C. § 1983. Named as defendants are the St. Louis County Department of Justice Services,

Unknown Rideout, Unknown Thompson, and Unknown Rhodes. (Docket No. 1 at 2-3). The

defendants are sued in their official capacities only.

Plaintiff states that on June 12, 2019, when he was a pretrial detainee at the SLCJC,

Correctional Officer Rhodes called him out of his cell while everyone else was locked down.

(Docket No. 1 at 3). Officer Rhodes handed plaintiff an open legal letter and told him there was a

“present inside.” Officer Rhodes also told plaintiff that she wanted to “get mine” upon plaintiff’s

release. When plaintiff returned to his cell, he discovered that the letter contained “gloves with

meth and THC.”

On June 14, 2019, a confidential informant alerted correctional officers to what had

transpired. Plaintiff’s cellmate, along with another inmate, were “taken out first” by correctional

officers. Plaintiff then swallowed the gloves containing the methamphetamines and THC. He

subsequently failed a drug test and was escorted to segregation. Plaintiff advised the lieutenant

that he was dizzy, then passed out and was taken to the hospital.

Plaintiff alleges that he has “nightmares” about the “sexual favors” Officer Rhodes wanted

in return for the drugs. (Docket No. 1 at 4). He also states that he is “severely depressed and

traumatized from the events” that took place on June 14, 2019.

On June 15, 2019, plaintiff states that Officer Rideout and Officer Thompson picked him

up from Barnes Jewish Hospital. He was wheelchaired to a car in front of the hospital, and then

helped into the vehicle by Officer Rideout. Plaintiff alleges that Officer Rideout did not place him

in a seatbelt.

On the way back to the SLCJC, plaintiff began to feel dizzy again. He further states that

his “rectum was burning.” When he reached down to touch his rectum, his hand was covered in

blood. Officer Rideout instructed Officer Thompson to “turn on [the] lights and head to St. Mary’s

Hospital.” Officer Thompson “took a hard left turn,” causing plaintiff to hit his head on the

passenger-side window. Plaintiff states that he woke up at St. Mary’s hospital. As a result of hitting

his head, he claims that he had “a huge knot on [his] C6 vertebrae,” “nerve damage or [a] torn

tendon under [his] right shoulder blade,” a loss of hearing in his right ear, partial vision loss in his

right eye, and short blackouts. Plaintiff was seen by a doctor and had a CAT scan that “came back

okay.”

Plaintiff returned to the SLCJC on June 18, 2019, where he was “received” by medical

staff. (Docket No. 1 at 5). He was seen by Dr. Davis on June 20, 2019, and then sent to segregation,

“disregarding the 5 day protocol for [him] to stay in the infirmary.” Then, on July 6, 2019, Nurse

Teriyana gave him another inmate’s medication. Nurse Teriyana told the doctor. The doctor never

saw plaintiff but told the nurse that plaintiff “would live.” Plaintiff alleges that he has not had

proper medical treatment while at the SLCJC, and that the medical staff has committed

malpractice. As a result of these claims, plaintiff is seeking $1,000,000. (Docket No. 6).

Attached to the complaint are a number of grievances, grievance responses, and grievance

appeals, which cover the allegations made in the complaint.1 (Docket No. 1-2). Subsequently,

plaintiff filed a supplement containing more grievance forms, as well as incident reports and a

timeline. (Docket No. 6).

Discussion

Plaintiff is a pro se litigant who brings this action pursuant to 42 U.S.C. § 1983. He asserts

various claims, including sexual harassment, failure to buckle his seatbelt during transport, and

inadequate medical care. For the reasons discussed below, plaintiff’s complaint is defective and

subject to dismissal. However, he will be allowed to file an amended complaint according to the

instructions set forth below.

A. Deficiencies in Complaint

Plaintiff’s complaint is deficient and subject to dismissal because he has not properly stated

a claim against any of the defendants. With regard to the claim against the St. Louis County

Department of Justice Services, plaintiff’s claim fails because it is not a juridical entity, suable as

such. See Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (stating that West

Memphis Police Department and West Memphis Paramedic Services were “simply departments

or subdivisions of the City government,” and not suable entities); Owens v. Scott Cty. Jail, 328

F.3d 1026, 1027 (8th Cir. 2003) (stating that “county jails are not legal entities amenable to suit”);

and De La Garza v. Kandiyohi Cty. Jail, 18 Fed. Appx. 436, 437 (8th Cir. 2001) (affirming district

court dismissal of county jail and sheriff’s department as parties because they are not suable

1 The Court will treat these attachments as part of the pleadings. 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”).

entities).

Plaintiff’s claims against Officer Rhodes, Officer Rideout, and Officer Thompson also fail,

because these defendants are sued in their official capacities only. 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 v. Outboard Marine Corp.,

172 F.3d 531, 535 (8th Cir. 1999). However, plaintiff has not demonstrated the liability of St. Louis

County for allegedly violating his constitutional rights. See Marsh v. Phelps Cty., 902 F.3d 745,

751 (8th Cir. 2018) (recognizing “claims challenging an unconstitutional policy or custom, or those

based on a theory of inadequate training, which is an extension of the same”).

Though he has not specifically named them as defendants in the complaint, plaintiff also

presents allegations against SLCJC medical staff, including Dr. Davis and Nurse Teriyana.

Because plaintiff does not indicate the capacity in which he is suing Dr. Davis and Nurse Teriyana,

it is presumed he is suing them in their official capacities only. See Baker v. Chisom, 501 F.3d 920,

923 (8th Cir. 2007). Thus, his suit against them is actually against their employer. See White, 865

F.3d at 1075. However, plaintiff has not alleged any facts identifying the employer of Dr. Davis

and Nurse Teriyana, much less establishing their employer’s constitutional liability.

B. Order to Amend

Because plaintiff is proceeding pro se, he will be allowed an opportunity to amend his

complaint in accordance with the instructions set forth below.

Plaintiff should type or neatly print his amended complaint on the Court’s civil rights form,

which will be provided to him. See E.D. Mo. L.R. 2.06(A) (“All actions brought by self-

represented plaintiffs or petitioners should be filed on Court-provided forms”). The Court notes

that plaintiff’s handwriting can be difficult to read at times. Thus, if the amended 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”). The Court notes that plaintiff attempted to bring claims against parties

within the complaint who were not listed in the case caption. All defendants must be in the case

caption. If there is not enough room in the caption, plaintiff may add additional sheets of paper.

Likewise, in the section of the form complaint for “The Defendants,” plaintiff must name each and

every defendant, their job or title, their employer, and their address. Plaintiff should add additional

sheets of paper with this information, if necessary.

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). Thus, 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.

The amended complaint should only include claims that arise out of the same transaction

or occurrence. In other words, plaintiff should only include claims that are related to each other.

See Fed. R. Civ. P. 20(a)(2). Alternatively, plaintiff may choose a single defendant and set forth

as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a).

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.

If plaintiff is suing a defendant in an individual capacity, he is required to 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 is suing multiple defendants, 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 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”).

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. 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.

C. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. (Docket No. 2). 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. Moreover, plaintiff is being directed to file an amended complaint. The Court

will entertain future motions for appointment of counsel as the case progresses, if appropriate.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis

(Docket No. 3) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $7.40

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 to appoint counsel (Docket No. 2)

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 complaint form.

IT IS FURTHER ORDERED that plaintiff shall have thirty (30) days from the date of

this order in which to file an amended complaint on the Court-form in accordance with the

instructions set forth above.

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 plaintiff’s amended complaint, the

Court will review it pursuant to 28 U.S.C. § 1915.

Dated this 17th day of December, 2019.

/s/ Jean C. Hamilton

JEAN C. HAMILTON

UNITED STATES DISTRICT JUDGE