Keeling v. Holder

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

JAMES KEELING, )

Plaintiff,

v. Case No. 1:19-cv-179-SNLJ

BOB HOLDER, et al.,

Defendants. ;

MEMORANDUM AND ORDER

This matter is before the Court on the motion of self-represented plaintiff James Keeling,

an inmate at the Eastern Reception Diagnostic and Correctional Center, for leave to commence

this civil action without payment of the required filing fee. (ECF 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 allow

plaintiff the opportunity to submit 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 Court each time the amount in the prisoner’s account exceeds $10, until

the filing fee is fully paid. Id.

Plaintiff has not submitted a prison account statement. Plaintiff asserts in his Application

to Proceed in District Court without Prepaying Fees or Costs that the Dunklin County Justice

Center, the institution he was incarcerated in when he filed the instant complaint, refused to

provide him with a certified inmate account statement. (ECF. No. 2). Therefore, plaintiff will be

required to pay an initial partial filing fee of $1.00, an amount that is reasonable based upon the

information before the Court. 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), 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, 678 (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 on its judicial experience and common sense. Jd. 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 a court must accept factual allegations in the complaint as true but

is not required to “accept as true any legal conclusion couched as a factual allegation”).

When reviewing a complaint filed by a self-represented person under 28 U.S.C. § 1915,

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 self-represented complainants 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 self-represented plaintiff that assumed facts that had not

been pleaded). In addition, affording a self-represented 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 brings this action under 42 U.S.C. § 1983 for an incident that occurred while he

was a pretrial detainee at the Dunklin County Justice Center (“DCJC”) located in Kennett,

Missouri. Named as defendants are three DCJC employees: Bob Holder (Sheriff), Wally Pointer

(Deputy Sheriff), and Nicole Unknown. Plaintiff brings his claims against all defendants in their

individual capacities only.

Plaintiff alleges that on or around September 11, 2019 he was in “lockdown for 24-hour[s]

in a5 by 10 cell in H pod with 9 other detainee[s]” as a “form of punishment.” Plaintiff states he

suffered from a seizure at 3:00 a.m., which was not responded to for 30 minutes because the cell

was not equipped with an emergency call button. Plaintiff states that a non-party corrections

. officer entered the cell but did not provide him with medical attention. Plaintiff alleges defendants

Holder, Wally, and Nicole Unknown “knows to better train their officers and it’s unconstitution[al]

to put 10 people in a 5 by 10 cell and with their evil intents, knows [he has] seizures.” For relief,

plaintiff seeks $20,000 for pain and suffering.

Discussion

As pleaded, the complaint fails to state a claim upon which relief can be granted against

any named defendant. Although plaintiff states he did not receive medical treatment and was

subjected to conditions he believes violate the law, he has not alleged that Holder, Wally, or Nicole

Unknown were directly involved in or personally responsible for specific violations of his

constitutional rights. “Liability under § 1983 requires a causal link to, and direct responsibility

for, the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990).

See also Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001) (§ 1983 liability arises only upon a

showing of personal participation by defendant) ; Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir.

1985) (claim not cognizable under § 1983 where plaintiff fails to allege defendant was personally

involved in or directly responsible for incidents that injured plaintiff). In order to state an

actionable civil rights claim against each defendant, plaintiff must set forth specific factual

allegations showing what that particular defendant actually did, or failed to do, that violated the

plaintiff's federally-protected rights. See West v. Atkins, 487 U.S. 42, 48 (1988); see also Ellis v.

Norris, 179 F.3d 1078, 1079 (8th Cir. 1999) (a plaintiff must plead facts showing each named

defendant’s personal involvement in the alleged constitutional wrongdoing).

F urthermore, to any extent plaintiff is alleging that the defendants are liable solely because

they held administrative or supervisory positions, such claims are also subject to dismissal. See

Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in § 1983

cases). A supervisor is liable for the actions of his subordinates under § 1983 only if he personally

participates in the alleged unconstitutional conduct, or when there is a causal connection between

his actions and the alleged constitutional deprivation. See Glick v. Sargent, 696 F.2d 413, 415 (8th

Cir. 1983) (warden must play a personal role in the disciplinary process; he cannot be held liable

for the outcome of the process). As stated above, plaintiff has failed to plead specific facts

establishing an actual link or connection between the named defendants and the alleged

constitutional violations.

Because plaintiff is self-represented, the Court will permit him to file an amended

complaint to attempt to cure his pleading deficiencies.

Instructions on Amending the Complaint

In consideration of plaintiff's self-represented status, the Court will allow him to file an

amended complaint. Plaintiff is warned that the filing of an amended complaint replaces the

original complaint, and so it must include all claims plaintiff wishes to bring. See In re Wireless

Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005) (“It is well-

established that an amended complaint supersedes an original complaint and renders the original

complaint without legal effect”). Plaintiff must type or neatly print the amended complaint on the

Court’s prisoner civil rights complaint form, which will be provided to him. See E.D. Mo. L.R.

45 — 2.06(A) (“All actions brought by self-represented plaintiffs or petitioners should be filed on

Court-provided forms”).

In the “Caption” section of the amended complaint, plaintiff must state the first and last

name, to the extent he knows it, of each defendant he wishes to sue. See Fed. R. Civ. P. 10(a)

(“The title of the complaint must name all the parties”). Plaintiff must avoid naming anyone as a

defendant unless that person is directly related to his claim. Plaintiff must also specify whether

he intends to sue each defendant in his or her individual capacity, official capacity, or both.

In the “Statement of Claim” section, plaintiff should begin by writing the defendant’s

name. In separate, numbered paragraphs under that name, plaintiff should set forth a short and

plain statement of the facts that support his claim or claims against that defendant. See Fed. R.

Civ. P. 8(a). Each averment must be simple, concise, and direct. See id. Plaintiff must state his

claims in numbered paragraphs, and each paragraph should be “limited as far as practicable to a

single set of circumstances.” See Fed. R. Civ. P. 10(b). If plaintiff names a single defendant, he

may set forth as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a). If plaintiff

names more than one defendant, he should only include claims that arise out of the same

transaction or occurrence, or simply put, claims that are related to each other. See Fed. R. Civ. P.

20(a)(2).

It is important that plaintiff allege facts explaining how each defendant was personally

involved in or directly responsible for harming him. See Madewell, 909 F.2d at 1208. Plaintiff

must explain the role of the defendant, so that the defendant will have notice of what he or she is

accused of doing or failing to do. 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.”). 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). Finally, plaintiff must not try to amend a complaint by filing separate documents. Instead,

he must file a single, comprehensive pleading that sets forth his claims for relief.

Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. (ECF No. 3). In civil cases, a self-

represented 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 self-represented litigant to investigate the facts, the existence of

conflicting testimony, and the ability of the self-represented litigant to present his or her claim.

Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006).

After considering these factors, the Court finds that the appointment of counsel is

unwarranted at this time. Plaintiff has yet to file a complaint that survives initial review, so it

cannot be said that he has presented non-frivolous claims. Additionally, this case appears to

involve straightforward factual and legal issues, and there is no indication that plaintiff cannot

investigate the facts and present his claims to the Court. The Court will therefore deny his motion

without prejudice, and will entertain future motions for appointment of counsel, if appropriate, as

the case progresses.

Accordingly,

IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis (ECF

No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $1.00 within

twenty-one (21) 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) that the remittance is for an original proceeding.

IT IS FURTHER ORDERED that, within thirty (30) days of the date of this

Memorandum and Order, plaintiff shall submit an amended complaint in accordance with the

instructions set forth herein.

IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff two blank

Prisoner Civil Rights Complaint forms. Plaintiff may request additional forms as needed.

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

No. 3) is DENIED at this time.

IT IS FURTHER ORDERED that if plaintiff fails to timely comply with this

Memorandum and Order, the Court will dismiss this action without prejudice and without further

notice.

Dated this $% day of June, 2020.

STEPHEN N. ts. Lgl IRZ

UNITED STATES DISTRICT JUDGE