Watson v. Driskill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

PIERRE WATSON, )

)

Plaintiff, )

)

v. ) No. 4:18-cv-00764-NAB

)

ZACHARY DRISKILL, et al., )

)

Defendants. )

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on review of plaintiff’s amended complaint pursuant to 28

U.S.C. § 1915. Having reviewed the amended complaint, and for the reasons discussed below, the

Court will dismiss the official capacity claims against all defendants, as well as the individual

capacity claims against defendants Michelle Unknown and Unknown Fulh. However, the Court

will direct the Clerk of Court to issue process on defendants Zachary Driskill, Jessica Hanner, and

Diane Manley in their individual capacities as to plaintiff’s failure to protect 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).

Background

Plaintiff is a pro se litigant who is currently incarcerated at the Randolph County Jail in

Chester, Illinois. On May 16, 2018, plaintiff filed a civil action complaining of constitutional

violations that allegedly occurred while he was an inmate at the Crawford County Jail in

Steeleville, Missouri. (Docket No. 1). On July 16, 2018, plaintiff filed a motion to amend or correct

his complaint by interlineation. (Docket no. 8). The Court denied the motion, but gave plaintiff

thirty days in which to file an amended complaint. (Docket No. 11).

After seeking four separate extensions of time, plaintiff filed his amended complaint on

June 18, 2019. (Docket No. 26). In addition, he has filed two motions for appointment of counsel.

(Docket No. 27; Docket No. 30).

The Amended Complaint

Plaintiff brings this pro se civil action pursuant to 42 U.S.C. § 1983. He names Lieutenant

Zachary Driskill, Sergeant Jessica Hanner, Corporal Diane Manley, Nurse Michelle Unknown,

and Dr. Unknown Fulh as defendants. (Docket No. 26 at 2-4). The defendants are sued in both

their official and individual capacities.

Plaintiff states that at the time the events in the amended complaint occurred, he was a

federal inmate in the custody of the Crawford County Sheriff’s Department. (Docket No. 26 at

12). In early April 2017, he was in an altercation with an inmate named John Hendrichs. (Docket

No. 26 at 13). As a result of this incident, inmate Hendrichs was moved from Housing Unit C to

Housing Unit B in order to separate him from plaintiff.

On June 17, 2017, plaintiff was placed on ten days’ lockdown for a “fabricated violation

of institutional rules” after he “supposedly” threatened an officer. He was also moved from

Housing Unit C to Housing Unit B, and placed into a lockdown cell next to inmate Hendrichs.

Plaintiff states that he requested a disciplinary hearing to dispute the charges against him. Although

an officer named Kevin Brown attempted to persuade plaintiff not to have a hearing, plaintiff

insisted, filling out a form and signing it in front of Brown.

When plaintiff noticed that he had been placed in a cell right next to inmate Hendrichs, he

alleges that he immediately asked Corporal Manley and Sergeant Hanner to move him, as he

“feared for his life.” According to plaintiff, both Manley and Hanner denied his request, advising

him that there was no room in the jail to move him. Plaintiff states this is not true. Plaintiff filled

out a prisoner request form addressed to Corporal Manley and Sergeant Hanner, asking to be

moved. (Docket No. 26 at 14). He also requested permission to speak to the lieutenant, which was

denied.

On June 18, 2017, Corporal Manley and Sergeant Hanner came to his cell to speak to him

about his request for a disciplinary hearing and his request to be moved. Plaintiff states that Manley

and Hanner advised him that his request to be moved was denied. He was also told that he could

not have a disciplinary hearing due to a jail policy prohibiting hearings for “parole/probation

offender[s].” Plaintiff states that he told Corporal Manley and Sergeant Hanner that he was not

being incarcerated for violating probation or parole. Plaintiff also states that he asked Officer

Brown to check his booking sheet, which would show that plaintiff was being held on federal

charges. Officer Brown denied plaintiff’s request and advised plaintiff to fill out a prisoner request

form or grievance.

On June 19, 2017, plaintiff filed a Level I grievance with Sergeant Hanner with regard to

his request for a disciplinary hearing and his request to be moved to another housing unit. On June

20, 2017, Sergeant Hanner responded to plaintiff’s request by telling him that she had already

spoken to him about his requests, and that they were denied. That same day, plaintiff states that he

filed a Level II grievance addressed to Lieutenant Driskill. This grievance requested that plaintiff

be rebooked as a federal inmate and that he be allowed to receive a disciplinary hearing.

On June 21, 2017, Lieutenant Driskill verbally denied plaintiff’s request to be rebooked.

He also denied plaintiff’s request to be moved to a different housing unit. Plaintiff states that

Lieutenant Driskill also placed him on “permanent lockdown per orders of the U.S. Marshals

office” until further notice. Plaintiff filled out another prisoner request form addressed to Corporal

Manley, requesting that he either be given a hearing or released off lockdown and placed into his

original housing unit. (Docket no. 26 at 15). He also requested that the U.S. Marshals be contacted

to verify the lockdown order. On June 22, 2017, Corporal Manley told him that the U.S. Marshals

had been contacted.

Plaintiff filed a Level I grievance addressed to Sergeant Hanner on June 23, 2017, again

requesting that the U.S. Marshals be contacted to verify the lockdown order. Sergeant Hanner

came to plaintiff’s cell to speak with him on June 24, 2017. According to plaintiff, Sergeant Hanner

advised him that he would remain on permanent lockdown status until further notice. Sergeant

Hanner also denied plaintiff’s requests to be moved back to his original housing unit, to be

rebooked as an inmate with a federal charge, and to receive a disciplinary hearing.

On June 24, 2017, plaintiff learned from his attorney that the U.S. Marshals office was

unaware of any lockdown order. Plaintiff filed a motion for removal of the lockdown order in his

criminal case. The motion was denied.

On June 27, 2017, plaintiff’s attorney spoke with someone at the Crawford County

Sheriff’s Department. As a result, plaintiff was released from lockdown. In total, he states he spent

ten days on lockdown for “fabricated” reasons.

Also on June 27, 2017, plaintiff alleges that Officer Mathew Unknown unlocked inmate

Hendrichs’ cell. (Docket No. 26 at 16). This allowed inmate Hendrichs to access plaintiff’s cell

while plaintiff was sleeping. Inmate Hendrichs allegedly hit plaintiff in the head with an object,

waking him. Plaintiff states that Officer Mathew Unknown “just stood there and watched the

altercation” while plaintiff was “continuously hit in the head with the object.” He states he was

also kicked in the head and face once he fell to the floor.

Plaintiff eventually managed to flee from the cell, whereupon he picked “up a food tray

and used it as a weapon to defend himself.” He states that the attack “took place for several

moments” before officers began to intervene. Afterwards, he was taken to the medical unit where

he received medical attention for bruised ribs, a bloody nose and mouth, and “sever[e] head

trauma.” Plaintiff received ten days’ lockdown for the altercation with inmate Hendrichs.

On June 28, 2017, plaintiff filed a Level I grievance addressed to Sergeant Hanner, asking

to be taken off lockdown because he had been the one who was assaulted. The following day,

Sergeant Hanner denied plaintiff’s grievance. Plaintiff then filed a Level II grievance to appeal the

denial of his Level I grievance. The Level II grievance was addressed to Lieutenant Driskill. On

June 30, 2017, Lieutenant Driskill denied plaintiff’s Level II grievance.

Plaintiff states that as a result of his altercation with inmate Hendrichs, he received a lump

on the left side of his head that gave him headaches. (Docket No. 26 at 17). On July 1, 2017, July

3, 2017, and July 10, 2017, he filled out sick call forms in order to see Nurse Michelle. Plaintiff

was not seen by Nurse Michelle until early August 2017. At that appointment, Nurse Michelle

“determined that the lump was a result of the head trauma” received during plaintiff’s altercation

with inmate Hendrichs. However, she “only” prescribed plaintiff ibuprofen. In late August 2017,

plaintiff “filled out a fourth sick call request form to see Nurse Michelle because the ibuprofen

was not working for the headaches and pain.”

Plaintiff saw Dr. Fulh in early September 2017. Dr. Fulh examined plaintiff’s head and

determined that plaintiff only needed more ibuprofen. Plaintiff states that Dr. Fulh denied his

request to be sent to an outside hospital to receive a second opinion, or to receive an X-ray or MRI.

Plaintiff filed a Level I grievance in early October 2017, requesting to be taken to an outside

hospital. He was advised by Sergeant Hanner that he needed to fill out a sick call request form. In

response, plaintiff filed a Level II grievance. (Docket No. 26 at 18). Lieutenant Driskill responded

to this grievance by denying plaintiff’s request to be taken to an outside hospital.

On October 31, 2017, plaintiff filed another Level I grievance requesting that he be seen

by Nurse Michelle and Dr. Fulh so that he could be taken to an outside hospital for “proper

treatment.” Lieutenant Driskill denied the grievance on November 1, 2017.

Plaintiff accuses Lieutenant Driskill, Sergeant Hanner, and Corporal Manley of violating

his due process rights by fabricating an incident report and not allowing him to refute it via a

hearing; illegally placing him on lockdown; and by placing him in the same unit with an inmate

with whom he had already had an altercation. (Docket No. 26 at 23). He also asserts that Lieutenant

Driskill, Sergeant Hanner, and Corporal Manley refused his request for outside medical treatment,

and retaliated against him for filing numerous grievances and contacting the U.S. Marshals by

allowing inmate Hendrichs to assault him. Plaintiff further claims that Nurse Michelle and Dr.

Fulh violated his Eighth Amendment right to medical care by not sending him to an outside

hospital for his injuries.

Plaintiff seeks $250,000 in damages from Lieutenant Driskill, Sergeant Hanner, and

Corporal Manley, and $250,000 in damages from Nurse Michelle and Dr. Fulh. He seeks a further

$50,000 in punitive damages from each defendant.

Discussion

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

reviewed the amended complaint, and for the reasons discussed below, the Court will dismiss the

official capacity claims against all defendants, as well as the individual capacity claims against

defendants Michelle Unknown and Unknown Fulh. However, the Court will direct the Clerk of

Court to issue process on defendants Zachary Driskill, Jessica Hanner, and Diane Manley in their

individual capacities as to plaintiff’s failure to protect claim.

A. Official Capacity Claims Against Defendants Driskill, Hanner, and Manley

The official capacity claims against Lieutenant Driskill, Sergeant Hanner, and Corporal

Manley must be dismissed. 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). 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”).

As such, 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 alleges that Lieutenant Driskill, Sergeant Hanner, and Corporal Manley are

employed by the Crawford County Sheriff’s Department. Therefore, plaintiff’s official capacity

claims against these defendants are actually claims against Crawford County itself.

A local governing body such as Crawford County can be sued directly under § 1983. See

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). Liability may attach

if the constitutional violation “resulted from (1) an official municipal policy, (2) an unofficial

custom, or (3) a deliberately indifferent failure to train or supervise.” Mick v. Raines, 883 F.3d

1075, 1079 (8th Cir. 2018). See also 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”). Plaintiff thus has three ways in which

to potentially prove the liability of Crawford County.

First, plaintiff can show the existence of an unconstitutional policy. “Policy” refers to

“official policy, a deliberate choice of a guiding principle or procedure made by the municipal

official who has final authority regarding such matters.” Corwin v. City of Independence, Mo., 829

F.3d 695, 700 (8th Cir. 2016). For a policy that is unconstitutional on its face, a plaintiff needs no

other evidence than a statement of the policy and its exercise. Szabla v. City of Brooklyn, Minn.,

486 F.3d 385, 389 (8th Cir. 2007). However, when “a policy is constitutional on its face, but it is

asserted that a municipality should have done more to prevent constitutional violations by its

employees, a plaintiff must establish the existence of a ‘policy’ by demonstrating that the

inadequacies were a product of deliberate or conscious choice by the policymakers.” Id. at 390.

“A policy may be either a policy statement, ordinance, regulation, or decision officially adopted

and promulgated by the municipality’s governing body.” Angarita v. St. Louis Cty., 981 F.2d 1537,

1546 (8th Cir. 1992).

Second, plaintiff can establish a claim of liability based on an unconstitutional “custom.”

In order to do so, plaintiff must demonstrate:

1) The existence of a continuing, widespread, persistent pattern of

unconstitutional misconduct by the governmental entity’s

employees;

2) Deliberate indifference to or tacit authorization of such conduct

by the governmental entity’s policymaking officials after notice

to the officials of that misconduct; and

3) That plaintiff was injured by acts pursuant to the governmental

entity’s custom, i.e., that the custom was a moving force behind

the constitutional violation.

Johnson v. Douglas Cty. Med. Dep’t, 725 F.3d 825, 828 (8th Cir. 2013).

Finally, plaintiff can assert a municipal liability claim by establishing a deliberately

indifferent failure to train or supervise. To do so, plaintiff must allege a “pattern of similar

constitutional violations by untrained employees.” S.M. v. Lincoln Cty., 874 F.3d 581, 585 (8th Cir.

2017).

Plaintiff does not need to specifically plead the existence of an unconstitutional policy or

custom. See Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th Cir. 2004).

However, at a minimum, the complaint must allege facts supporting the proposition that an

unconstitutional policy or custom exists. Doe ex rel. Doe v. Sch. Dist. of City of Norfolk, 340 F.3d

605, 614 (8th Cir. 2003).

Here, plaintiff has failed to establish that the alleged constitutional violations of which he

complains were the result of an official policy or unofficial custom on the part of Crawford County.

He has also failed to assert any facts to support the proposition that his constitutional rights were

violated due to a failure to train. As such, he has failed to state a claim against Crawford County,

and plaintiff’s official capacity claims against Lieutenant Driskill, Sergeant Hanner, and Corporal

Manley must be dismissed. See Ulrich v. Pope Cty., 715 F.3d 1054, 1061 (8th Cir. 2013) (affirming

district court’s dismissal of Monell claim where plaintiff “alleged no facts in his complaint that

would demonstrate the existence of a policy or custom” that caused the alleged deprivation of

plaintiff’s rights).

B. Official Capacity Claims Against Defendants Michelle Unknown and Dr. Fulh

Plaintiff’s official capacity claims against Nurse Michelle and Dr. Fulh must be dismissed.

As noted above, an official capacity claim against an individual is actually a claim against the

governmental entity employing the individual. See White, 865 F.3d at 1075. Plaintiff states that

Nurse Michelle and Dr. Fulh are employed by Advanced Correctional Healthcare, which is the

healthcare provider for the Crawford County Sheriff’s Department. Therefore, plaintiff’s official

capacity claims against Nurse Michelle and Dr. Fulh are actually claims against Advanced

Correctional Healthcare itself.

“A corporation acting under color of state law cannot be liable on a respondeat superior

theory.” Smith v. Insley’s Inc., 499 F.3d 875, 880 (8th Cir. 2007). Rather, to support a claim against

such a corporation, the plaintiff “must show that there was a policy, custom, or official action that

inflicted an actionable injury.” Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006). See also

Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975 (8th Cir. 1993) (stating that a corporation

acting under color of state law will only be held liable where “there is a policy, custom or action

by those who represent official policy that inflicts injury actionable under § 1983”).

Here, plaintiff has not presented any facts alleging that a policy, custom, or official action

on the part of Advanced Correctional Healthcare caused him an actionable injury. Furthermore, as

previously stated, Advanced Correctional Healthcare cannot be held liable on a respondeat

superior theory. Therefore, plaintiff has failed to state an official capacity claim against either

Nurse Michelle or Dr. Fulh.

C. Individual Capacity Claims Against Defendants Driskill, Hanner, and Manley

Plaintiff asserts several claims against Lieutenant Driskill, Sergeant Hanner, and Corporal

Manley. First, he alleges that his right to due process was violated when he was placed on

lockdown for a “fabricated” incident report and not given a hearing to refute the charge. Second,

he states that Lieutenant Driskill, Sergeant Hanner, and Corporal Manley retaliated against him

for filing grievances by allowing inmate Hendrichs to assault him. Third, he states that Lieutenant

Driskill, Sergeant Hanner, and Corporal Manley were deliberately indifferent to his medical needs

by not approving his request to go to an outside hospital. Finally, he alleges that Lieutenant

Driskill, Sergeant Hanner, and Corporal Manley failed to protect him by placing him next to inmate

Hendrichs, and by refusing his request to be moved.

i. Fabricated Incident Report and Denial of Hearing

Plaintiff states that he was placed on ten days’ lockdown for a “fabricated violation of

institutional rules” for “supposedly” threatening an officer. He also states that once he was placed

on lockdown, he was denied a disciplinary hearing due to his inmate classification.

As to plaintiff’s claim that he was given a fabricated incident report, an alleged false

incident report, standing alone, does not state a constitutional violation. See Sprouse v. Babcock,

870 F.2d 450, 452 (8th Cir. 1989). Moreover, plaintiff has not provided any factual support for his

contention that the incident report he received was fabricated. Instead, he presents the allegation

in the form of a conclusion, which is insufficient to state a claim. See Neubauer v. FedEx Corp.,

849 F.3d 400, 404 (8th Cir. 2017) (stating that a complaint does not suffice “if it tenders naked

assertions devoid of further factual enhancement”).

As to plaintiff’s claim that he was unconstitutionally denied a disciplinary hearing, the

determination of whether prison officials denied an inmate due process involves a two-step

inquiry. Williams v. Hobbs, 662 F.3d 994, 1000 (8th Cir. 2011). First, a plaintiff must demonstrate

that he or she was deprived of life, liberty, or property by government action. Phillips v. Norris,

320 F.3d 844, 846 (8th Cir. 2003). See also Beaulieu v. Ludeman, 690 F.3d 1017, 1047 (8th Cir.

2012) (stating that a court “need reach the question of what process is due only if the inmates

establish a constitutionally protected liberty interest”); and Singleton v. Cecil, 155 F.3d 983, 987

(8th Cir. 1998) (explaining that to claim a due process violation, plaintiff has to be deprived of

either life, liberty, or property, otherwise “it does not matter whether one has received due process

or not”). Once it has been established that a liberty interest exists, the process necessary to protect

that interest must be determined. Williams, 662 F.3d at 1000.

With regard to establishing a liberty interest, the United States Supreme Court has

determined that prisoners have a protected liberty interest in avoiding conditions of confinement

that impose “atypical and significant hardship on the inmate in relation to the ordinary incidents

of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Plaintiff, however, has not

demonstrated that his placement into lockdown for a period of ten days was an “atypical and

significant hardship.” He has not shown, for instance, that the length of time in lockdown was

inappropriate. See Orr v. Larkins, 610 F.3d 1032, 1033-34 (8th Cir. 2010) (stating that nine months

in administrative segregation did not constitute an atypical and significant hardship). He has also

not alleged that his placement in lockdown resulted in a restriction of privileges or the loss of

credit. Because he has not established a protected liberty interest, he has failed to state a claim that

his right to due process was violated.

ii. Retaliation

Plaintiff states that Lieutenant Driskill, Sergeant Hanner, and Corporal Manley retaliated

against him by opening his cell door and allowing inmate Hendrichs to assault him. He states this

occurred because of his filing of numerous grievances and because he contacted the U.S. Marshals

to tell them about the treatment he was receiving in Crawford County.

The right to be free from retaliation for availing oneself of the grievance process is clearly

established in the Eighth Circuit. Santiago v. Blair, 707 F.3d 984, 991 (8th Cir. 2013). See also

Nelson v. Shuffman, 603 F.3d 439, 450 (8th Cir. 2010) (stating “that actions taken in retaliation for

an inmate’s filing of a grievance are actionable under 42 U.S.C. § 1983”). However, plaintiff

presents this claim in the form of a conclusion. For example, he does not present any facts alleging

which defendant – if any – specifically opened the door. He also does not present any facts

supporting his contention that the door was opened with the intent that plaintiff be assaulted.

Further, plaintiff does not present any facts showing that this action was taken against him because

of his filing of grievances. Rather than facts, plaintiff has provided a conclusory statement that

does little more than recite the elements of a cause of action. This is insufficient to state a claim.

See Johnson v. Precythe, 901 F.3d 973, 977 (8th Cir. 2018) (explaining that “[a] pleading must

offer more than labels and conclusions or a formulaic recitation of the elements of a cause of action

to state a plausible claim for relief”).

iii. Deliberate Indifference to Medical Needs

Plaintiff alleges that Lieutenant Driskill, Sergeant Hanner, and Corporal Manley were

deliberately indifferent to his medical needs by not approving his request to be sent to an outside

hospital. To state a deliberate indifference claim, a prisoner must allege “(1) that he suffered

objectively serious medical needs and (2) that the prison officials actually knew of but deliberately

disregarded those needs.” Hamner v. Burls, 937 F.3d 1171, 1177 (8th Cir. 2019). Deliberate

indifference may be demonstrated by a showing that the medical care received by a prisoner was

“so inappropriate as to evidence intentional maltreatment.” Fourte v. Faulkner Cty., Ark., 746 F.3d

384, 387 (8th Cir. 2014).

Plaintiff has not established that Lieutenant Driskill, Sergeant Hanner, or Corporal Manley

were deliberately indifferent to his medical needs. In his complaint, plaintiff states that he was

seen by medical staff on the day of his assault by inmate Hendrichs, and was seen by Nurse

Michelle and Dr. Fulh thereafter. There are no allegations that defendants Driskill, Hanner, or

Manley interfered with this process in any way. The only assertion that plaintiff makes against

them is that they did not approve a request for him to be taken to an outside hospital. However, he

admits that Dr. Fulh also denied his request. Plaintiff makes clear that his preference was to be

seen by an outside hospital, and that he disagreed with the decision not to allow this. Nevertheless,

he has not presented any facts showing that Driskill, Hanner, and Manley’s refusal to allow him

to be taken to an outside hospital constituted a deliberate disregard of his medical needs bordering

on “intentional maltreatment.”

iv. Failure to Protect

Plaintiff states that Lieutenant Driskill, Sergeant Hanner, and Corporal Manley failed to

protect him when they placed him in a cell next to inmate Hendrichs, with whom he had an earlier

altercation. He further states that Driskill, Hanner, and Manley failed to move him, despite his

repeated requests.

Being subjected to assault is not part of the penalty that criminal offenders must pay for

their offenses. Young v. Selk, 508 F.3d 868, 871 (8th Cir. 2007). As such, prison inmates have a

clearly established Eighth Amendment right to be protected from violence by other inmates. Curry

v. Crist, 226 F.3d 974, 977 (8th Cir. 2000). Prison officials must take reasonable measures to

guarantee inmate safety and to protect prisoners from violence at the hands of other prisoners.

Berry v. Sherman, 365 F.3d 631, 633-34 (8th Cir. 2004). However, not every injury suffered by

one prisoner at the hands of another prisoner translates into constitutional liability. Whitson v.

Stone Cty. Jail, 602 F.3d 920, 923 (8th Cir. 2010). “Rather, prison officials violate the Eighth

Amendment only when they exhibit a deliberate or callous indifference to an inmate’s safety.”

Patterson v. Kelley, 902 F.3d 845, 851 (8th Cir. 2018).

Plaintiff’s failure to protect claim is sufficient to survive 28 U.S.C. § 1915 review. Plaintiff

states that he had an altercation with inmate Hendrichs that caused them to be separated. He further

states that when he was placed in lockdown, he was put in a cell right next to inmate Hendrichs,

though he alleges there was another lockdown unit in the jail. Plaintiff asserts that he requested to

be moved, and that he made this request to Lieutenant Driskill, Sergeant Hanner, and Corporal

Manley. Despite his claim that he was in danger, his request to move was denied. These allegations

must be accepted as true. See Jones v. Douglas Cty. Sheriff’s Dep’t, 915 F.3d 498, 499 (8th Cir.

2019) (stating that a court must accept the allegations contained in the complaint as true and make

all reasonable inferences in favor of the plaintiff). As such, the Clerk of Court will be directed to

issue process on Lieutenant Driskill, Sergeant Hanner, and Corporal Manley in their individual

capacities as to plaintiff’s claim of failure to protect.

D. Individual Capacity Claims Against Nurse Michelle and Dr. Fulh

Plaintiff’s individual capacity claims against Nurse Michelle and Dr. Fulh for deliberate

indifference to his medical needs must be dismissed. Under the Eighth Amendment, the

government has an obligation to provide medical care to those whom it is punishing by

incarceration. Estelle v. Gamble, 429 U.S. 97, 103 (1976). To demonstrate constitutionally

inadequate medical care, the inmate must show that a prison official’s conduct amounted to

deliberate indifference. Dulany v. Carnahan, 132 F.3d 1234, 1237-38 (8th Cir. 1997).

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 (8th Cir. 2019). See also Phillips v. Jasper Cty. Jail,

437 F.3d 791, 795 (8th 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 (8th 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 (8th Cir. 1995).

To prevail under this standard, an inmate must demonstrate that a prison health care

provider’s actions were “so inappropriate as to evidence intentional maltreatment or a refusal to

provide essential care.” Jackson v. Buckman, 756 F.3d 1060, 1066 (8th Cir. 2014). As such,

“deliberate indifference requires a highly culpable state of mind approaching actual intent.” Kulkay

v. Roy, 847 F.3d 637, 643 (8th Cir. 2017). Thus, a showing of deliberate indifference requires more

than a mere disagreement with treatment decisions and is greater than gross negligence. Gibson v.

Weber, 433 F.3d 642, 646 (8th Cir. 2006).

As to Nurse Michelle, plaintiff asserts that he was not able to see Nurse Michelle until he

had filled out three medical sick call requests, and that when he did see her, she only prescribed

ibuprofen. These factual allegations fail to demonstrate that Nurse Michelle was deliberately

indifferent to his medical needs. There is no indication that the delay between his initial receipt of

medical attention on June 27, 2017, and his appointment with Nurse Michelle in early August

2017, was the result of an intentional act on the part of Nurse Michelle that was so inappropriate

as to evidence maltreatment. Furthermore, plaintiff’s contention that Nurse Michelle’s prescription

of ibuprofen was inappropriate is a mere disagreement with a treatment decision, and does not

constitute deliberate indifference. See Johnson v. Leonard, 929 F.3d 569, 576 (8th Cir. 2019)

(stating that a prisoner’s disagreement with medical staff with the decision to offer him over-the-

counter medications, rather than prescription pain medication, does not constitute deliberate

indifference). Thus, plaintiff’s individual capacity claim against Nurse Michelle must be

dismissed.

As to Dr. Fulh, plaintiff acknowledges that Dr. Fulh examined the lump on his head and

prescribed him ibuprofen. Plaintiff insists that he should have been sent to an outside hospital for

tests, but that Dr. Fulh denied his request. Again, as stated above, a showing of deliberate

indifference requires more than alleging a disagreement with treatment decisions, which is all that

plaintiff has presented. There are no facts to establish that Dr. Fulh’s refusal to prescribe something

other than ibuprofen, or his refusal to send plaintiff to an outside hospital, amounted to a refusal

to provide essential medical care. Thus, plaintiff’s individual capacity claim against Dr. Fulh must

be dismissed.

E. Motions to Appoint Counsel

Plaintiff has filed two motions for appointment of counsel. (Docket No. 27; Docket No.

30). 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, 902 F.3d at 850. 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. The Court will entertain future motions for appointment of counsel as the case

progresses.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motions for appointment of counsel (Docket

No. 27; Docket No. 30) are DENIED at this time.

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

to issue on defendants Zachary Driskill, Jessica Hanner, and Diane Manley in their individual

capacities as to plaintiff’s claim of failure to protect.

IT IS FURTHER ORDERED that plaintiff’s official capacity claims against all

defendants are DISMISSED without prejudice for failure to state a claim. See 28 U.S.C. §

1915(e)(2)(B).

IT IS FURTHER ORDERED that plaintiff’s individual capacity claims against

defendants Michelle Unknown and Unknown Fulh are DISMISSED without prejudice for failure

to state a claim. See 28 U.S.C. § 1915(e)(2)(B).

IT IS FURTHER ORDERED that plaintiff’s individual capacity claims against

defendants Zachary Driskill, Jessica Hanner, and Diane Manley are DISMISSED without

prejudice for failure to state a claim, with the exception of plaintiff’s claim of failure to protect.

See 28 U.S.C. § 1915(e)(2)(B).

IT IS FURTHER ORDERED that an appeal from this partial dismissal would not be

taken in good faith.

A separate order of partial dismissal will be entered herewith.

Dated this 13th day of January, 2020.

HENRY EDWARD AUTREY

UNITED STATES DISTRICT JUDGE

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