Taylor v. Pemiscot County Justice Center

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

EDDIE R. TAYLOR, JR., )

)

Plaintiff, )

)

v. ) No. 1:20-cv-00011-SNLJ

)

PEMISCOT COUNTY JUSTICE CENTER, )

)

Defendant. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Eddie R. Taylor, Jr. for leave

to commence this civil action without prepayment of the required filing fee. (Docket No. 2).

Having reviewed the motion and the financial information submitted in support, the Court has

determined that plaintiff is unable to pay the full amount of the filing fee, and will assess an initial

partial filing fee of $1.89. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed

below, the Court will direct 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 a copy

of his certified inmate account statement. (Docket No. 4). The account statement showed an

average monthly deposit of $9.43. The Court will therefore assess an initial partial filing fee of

$1.89, 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 self-represented litigant who is currently incarcerated at the Ozark

Correctional Center in Fordland, Missouri. At the time relevant to the complaint, however, he was

an inmate in the Pemiscot County Justice Center in Caruthersville, Missouri. He brings this action

pursuant to 42 U.S.C. § 1983, naming the Pemiscot County Justice Center as the sole defendant.

(Docket No. 1 at 2).

In the complaint, plaintiff states that on or about November 11 to 18, 2018, while

incarcerated at the Pemiscot County Justice Center, he asked to be moved from his housing pod

after “receiving multiple threats from other inmates of serious bodily harm.” (Docket No. 1 at 3).

Plaintiff’s requests were refused. Subsequently, plaintiff “waited until the doors were open during

service of the evening meal” and “ran out of the pod” in order to seek protection. Plaintiff was

made to return to his pod, even though he “repeatedly advised jail staff of the existing problem of

threats.” He states that he was not able to tell staff “exactly what was happening,” as the staff

would not allow him “to talk to them privately.”

Plaintiff states that “the very next day [he] was viciously assaulted by several inmates.”

(Docket No. 1 at 4). During this incident, plaintiff was allegedly beaten and choked until he lost

consciousness. Plaintiff does not know what happened to him after that, but states that other

inmates told him he “was repeatedly picked up and slammed to the floor, hitting [his] head on the

concrete floor.” He was also told that he stopped breathing, and that CPR had to be administered

to him.

Plaintiff asserts that his assault was recorded by a security camera. He “filed multiple

grievances asking for video footage of the incident,” but has not received it. Instead, plaintiff

received a response stating that he was not being given the footage because he refused to press

charges against the inmates who assaulted him. Furthermore, plaintiff was not given the footage

because he had been released from the Pemiscot County Justice Center.

Plaintiff alleges that the Pemiscot County Justice Center had an obligation to secure his

safety after he requested protective custody. He further asserts that the failure of the Pemiscot

County Justice Center to provide him a copy of the security footage “prevents [him] from being

able to adequately file [his] claim.”

As a result of the assault, plaintiff was taken to the hospital. He states that he suffered from

“bad headaches,” and still struggles to remember things. Plaintiff is seeking $250,000 in damages.

(Docket No. 1 at 6).

Discussion

Plaintiff is a self-represented litigant who brings this civil action pursuant to 42 U.S.C. §

1983, alleging that the Pemiscot County Justice Center failed to protect him from an assault by

other inmates. For the reasons discussed below, the Court has determined that plaintiff’s complaint

is subject to dismissal. However, plaintiff will be given the opportunity to file an amended

complaint.

A. Deficiency in Complaint

Plaintiff’s complaint is deficient and subject to dismissal. Specifically, the only defendant

named in the complaint is the Pemiscot County Justice Center. The Pemiscot County Justice

Center, however, is not an entity subject to suit. See Owens v. Scott Cty. Jail, 328 F.3d 1026, 1027

(8th Cir. 2003) (stating that “county jails are not legal entities amenable to suit”); Ketchum v. City

of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (stating that “departments or subdivisions”

of local government are not “juridical entities suable as such”); 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 entities).

Even if the Court substituted Pemiscot County as the proper party defendant, plaintiff has

not stated a viable municipal liability claim against it. That is, plaintiff has not presented

allegations demonstrating that his constitutional rights were violated due to an unconstitutional

policy, custom, or failure to train on the part of Pemiscot County. See Mick v. Raines, 883 F.3d

1075, 1079 (8th Cir. 2018) (stating that liability may attach against a governmental entity 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”); and 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”).

B. Order to Amend

Because plaintiff is proceeding as a self-represented litigant, he will be allowed to amend

his complaint according to 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”). 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”). If there is not enough

room in the caption, plaintiff may add additional sheets of paper. However, all the defendants must

be clearly listed. 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).

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).

Generally, it is impermissible to name fictitious parties as defendants. Estate of Rosenberg

by Rosenberg v. Crandell, 56 F. 3d 35, 37 (8th Cir. 1995). See also Phelps v. U.S. Fed. Gov’t., 15

F.3d 735, 739 (8th Cir. 1994) (concluding that “district court did not err by dismissing the

‘unknown defendants’ without prejudice”). That is, if plaintiff is suing individuals, he must

provide their names. If plaintiff does not know their names, his allegations must be “specific

enough to permit the identity of the party to be ascertained after reasonable discovery.” See Estate

of Rosenberg, 56 F.3d at 37.

In structuring his amended complaint, 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.

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 for appointment of counsel. (Docket No. 3). 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. Additionally, neither the factual nor the legal issues in this case appear to be

complex. Finally, the Court is requiring plaintiff to file an amended complaint, because the instant

complaint is subject to dismissal. 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. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $1.89

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 for appointment of counsel (Docket

No. 3) 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 file an amended complaint on the Court-

provided form within thirty (30) days of the date of this order.

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 the second amended complaint, the

Court will review it pursuant to 28 U.S.C. § 1915(e)(2).

Dated this 23rd day of June, 2020.

STEPHEN N. LIMBAUGH, JR.

UNITED STATES DISTRICT JUDGE

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