Bell v. Lopez

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

CEDRIC BELL, )

Plaintiff,

Vs. Case No. 1:19-CV-172 JAR

CASEY CLAYTON, et al.,

Defendants.

MEMORANDUM AND ORDER

This matter is before the Court upon the motion of self-represented plaintiff Cedric Bell

for leave to commence this action without prepayment of the required filing fee. Having reviewed

the motion and the financial information submitted in support, the Court will grant the motion and

waive the initial partial filing fee. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the

complaint, the Court will order the Clerk to issue process or cause process to be issued against the

defendants in their individual capacities.

Initial Partial Filing Fee

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 Court each time the amount in the prisoner’s account exceeds $10, until

the filing fee is fully paid. Jd.

Plaintiff has submitted an application to proceed in the district court without prepaying fees

or costs. Where the form application states that an inmate must submit a certified prison account

statement with the application, plaintiff wrote: “Refuse by D.C.J.C.” The Court interprets this to

mean that the institution where plaintiff is being detained, Dunklin County Justice Center, has

refused to provide an account statement. In his form application, however, plaintiff states that he

has no money in cash or in any checking or savings account. ECF No. 2 at 2. Taking this into

consideration, the Court will not assess an initial partial filing fee at this time. See 28 U.S.C. §

1915(b)(4) (“In no event shall a prisoner be prohibited from bringing a civil action . . . for the

reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.”).

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, is malicious, fails to state a claim upon which relief can be granted, or

seeks monetary relief against a defendant who is immune from such relief. To state a claim for

relief, a complaint must plead more than “legal conclusions” and “[t]hreadbare recitals of the

elements of a cause of action [that are] supported by mere conclusory statements.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for relief, which

is more than a “mere possibility of misconduct.” Jd. at 679. “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 on its judicial experience and common sense. Jd. at 679.

When reviewing a pro se complaint under 28 U.S.C. § 1915, the Court accepts the well-

plead facts as true, White v. Clark, 750 F.2d 721, 722 (8th Cir. 1984), and liberally construes the

complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007); 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) (refusing to supply additional facts or to

construct a legal theory for the pro se plaintiff that assumed facts that had not been pleaded).

The Complaint _ .

Plaintiff, a pretrial detainee at the Dunklin County Justice Center (““DCJC”), filed this

action under 42 U.S.C. § 1983, alleging violations of his civil rights against three employees at

DCIC: (1) Casey Clayton (supervisor correctional officer); (2) Connor Bishop (correctional

officer); and (3) Ruby Unknown (correctional officer). Plaintiff names all three defendants in

individual capacities only.

Plaintiffs complaint is based on an incident of alleged excessive force by defendants.

The statement of his claim is as follows:

On Sept. 9, 2019, I, Cedric Bell #15329 was handcuffed in cell #125 when c/o

Connor Bishop rush[ed] me into the wall, then with evil motives start[ed] choking

me. Then Supervisor Casey Clayton instead of interven[ing to] stop[] c/o Connor

he deployed his taser and dry-stunned tazed me in the neck and c/o Ruby

(unknown last name) came over and place[d] another taser to my leg. I [received

a] laceration to my left wrist and pain to my chest. These officers by [doing] this

violated my 4th amendment of the Constitution.

ECF No. 1 at 3. Plaintiff arives his injuries as “laceration to the left wrist, chest pain, and

pain suffering.” Jd at 5. For relief, plaintiff seeks money damages totaling $45,000.

Discussion

Plaintiff alleges that defendants violated his Fourth Amendment rights by using excessive

force against him. Generally, the Fourth Amendment to the Constitution protects people from

unreasonable searches and seizures, and requires probable cause in order for a warrant to issue.

U.S. Const. amend. IV. This includes protection against the use of excessive force at the time

of arrest. “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.

2008); 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”). In this case, plaintiff complains about the use of excessive force by

correctional officers during pretrial detention, invoking his rights under the Fourteenth

Amendment’s Due Process Clause.!

The Due Process Clause of the Fourteenth Amendment protects pretrial detainees from

“the use of excessive force that amounts to punishment.” Kingsley v. Hendrickson, 135 S. Ct.

2466, 2473 (2015) (citing Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). In order to

prevail on an excessive force claim, plaintiff must show that a defendant purposely or knowingly

used objectively unreasonable force. Jd. “Whether the application of force is unreasonable turns

on the facts and circumstances of each particular case.” Ryan v. Armstrong, 850 F.3d 419, 427

(8th Cir. 2017) (internal quotations and citations omitted). “Factors relevant to assessing the

obj eee reasonableness of force used by officers include: the relationship between theneed □□□

1 See Graham v. Connor, 490°U.S. 386, 395 n.10 (1989) (“Our cases have not resolved the question whether the

Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive physical

force beyond the point at which arrest ends and pretrial detention begins, and we do not attempt to answer that

question today. It is clear, however, that the Due Process Clause protects a pretrial detainee from the use of ©

excessive force that amounts to punishment.”); Davis v. White, 794 F.3d 1008, 1011-12 (8th Cir. 2015) (“The

{Supreme] Court has not decided whether the Fourth Amendment applies to claims by detainees in custody.” (citing

Kingsley v. Hendrickson, 135 S. Ct. 2466, 2479 (Alito, J., dissenting) (2015))).

the use of force and the amount of force used; the extent of the plaintifP s injury; any effort made

by the officer to temper or to limit the amount of force; the severity of the security problem at

issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively

resisting.” Jd. (citing Kingsley, 135 S. Ct. at 2473).

Here, plaintiff alleges that while he was handcuffed, defendant correctional officer

Connor Bishop pushed him into a wall and choked him, correctional officer Casey Clayton tased

him on the neck, and correctional officer Ruby Unknown tased him in the leg. Plaintiff claims

that defendant Bishop had evil motives during the attack. Although plaintiff does not go into

detail on the injuries resulting from the incident, he asserts that he received a laceration to his

wrist, he experienced chest pain, and other suffering. These injuries could constitute more than

de minimis injuries. See Davis v. White, 794 F.3d 1008, 1012 (collecting cases finding more than

de minimis injuries in excessive force claims). In addition, defendants’ actions of pushing,

choking, and tasering were deliberate. See Kingsley, 135 S. Ct. at 2472 (“if the use of force is

deliberate—i.e., purposeful or knowing—the pretrial detainee’s claim may proceed.”) Finally,

the allegation that this use of force occurred after plaintiff was already restrained by handcuffs, is

enough to survive initial review as to being “objectively unreasonable” force. See Brown v. City

of Golden Valley, 574 F.3d 491, 498 (8th Cir. 2009) (finding a genuine issue of material fact

existed as to whether force was unreasonable when officer tased a suspect who was a minimal

safety threat and not actively resisting.) Having carefully reviewed and liberally construed

plaintiff's pleading, the Court finds that, at this initial stage of the proceeding, plaintiff has stated

an actionable claim against defendants Casey Clayton, Connor Bishop, and Ruby Unknown for

excessive force. The Court will direct that process be issued against these defendants in their

individual capacities.

og.

Appointment of Counsel

Finally, plaintiff's motion for appointment of counsel will be denied without prejudice to

refiling at a later time. There is no constitutional or statutory right to appointed counsel in civil

cases. See Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). To

determine whether to appoint counsel, the Court considers several factors, including whether: (1)

the plaintiff has presented non-frivolous allegations supporting his or her prayer for relief; (2) the

plaintiff will substantially benefit from the appointment of counsel; (3) there is a need to further

investigate and present the facts related to the plaintiffs allegations; and (4) the factual and legal

issues presented by the action are complex. See Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th

Cir. 1986); Nelson, 728 F.2d at 1005. After considering these factors, the Court finds that the facts

and legal issues involved in plaintiff's case are not so complicated that the appointment of counsel

is warranted at this time.

Accordingly,

iT IS HEREBY ORDERED that plaintiff's application to proceed in district court

without prepaying fees or costs [ECF No. 2] is GRANTED. Pursuant to 28 US.C. § 1915(b)(4),

the initial partial filing fee is waived.

. □□ □□ FURTHER ORDERED that the institution having custody of plaintiff shall,

whenever the amount in plaintiff's prison account exceeds $10.00, send monthly payments that

equal 20 percent of the funds credited to the account the preceding month to the United States

District Court for the Eastern District of Missouri Clerk’s office, pursuant to 28 U.S.C. §

1915(b)(2), until the filing fee is paid in full.

IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue

upon the complaint as to defendants Casey Clayton, Connor Bishop, and Ruby Unknown, in their

individual capacities.

IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF

No. 3] is DENIED without prejudice.

Dated this 10" day of January, 2020.

J aig ROSS

UNITED STATES DISTRICT JUDGE