Ware v. St. Louis City Justice Center

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ERIC WARE, )

)

Plaintiff, )

)

v. ) No. 4:20-cv-01065-AGF

)

ST. LOUIS CITY JUSTICE CENTER, )

)

Defendant. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Eric Ware 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 $1.00. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court

will direct plaintiff to file an amended complaint on a Court-provided form.

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.

Plaintiff has not submitted an inmate account statement as required by 28 U.S.C. §

1915(a)(2). Nevertheless, having reviewed the information contained in the motion, the Court will

require plaintiff to pay an initial partial filing fee of $1.00. 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)(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 St. Louis City

Justice Center (SLCJC) in St. Louis, Missouri. He has filed a civil action pursuant to 42 U.S.C. §

1983. His complaint names the SLCJC as the sole defendant. The complaint is handwritten and

not on a Court-provided form. The substance of the complaint concerns the SLCJC’s handling of

the COVID-19 pandemic.1

On June 28, 2020, plaintiff states that he “fell ill in his cell with chills, headaches, body

aches and chest pains.” (Docket No. 1 at 1). Plaintiff sought medical attention and was transported

1 COVID-19 is the name of the illness caused by the novel coronavirus known as SARS-CoV-2, which originated in

China, and has spread globally, resulting in the declaration of a national emergency. See Pres. Proc. No. 9994, 85 Fed.

Reg. 15337, 2020 WL 1272563 (Mar. 13, 2020). In the United States, the virus has resulted in hundreds of thousands

of cases, and tens of thousands of deaths. See In re Rutledge, 2020 WL 1933122, at *1 (8th Cir. 2020).

to the infirmary. (Docket No. 1 at 1-2). Medical staff accused plaintiff of faking his symptoms, but

nevertheless encouraged plaintiff to get screened for COVID-19. (Docket No. 1 at 2).

On July 1, 2020, plaintiff fell unresponsive and was transferred to the infirmary. A doctor

concluded that he was “possibly suffering from pneumonia and/or lung infections, and placed

plaintiff on antibiotics and ibuprofen.” He “was also placed on quarantine alone.” On July 2,

despite being quarantined, two pretrial detainees who had been screened for COVID-19 were

placed in his cell. Plaintiff, as well as the two pretrial detainees, all complained to staff, believing

it was dangerous for plaintiff to potentially be exposed to COVID-19. According to plaintiff, the

“ideas of all three fell on deaf ears.”

On July 6, both pretrial detainees who had been housed in plaintiff’s cell “were released

and cleared from having the coronavirus.” By July 8, plaintiff learned that his test had still not

come back. Later on that day, two more pretrial detainees were placed in his cell after being

screened for COVID-19 and testing positive. Plaintiff alleges that he “continued to suffer from

excruciating pain as medical staff and security unintelligently continued with the dangerous

procedures and putting positive [COVID-19] tested individuals in cells with individuals who have

not tested positive.”

Eventually, plaintiff was told that his COVID-19 test had been lost. (Docket No. 1 at 3).

He took a second test, which came back negative. On July 11, he was released from his infirmary

cell and placed under isolation in his cell in general population. Plaintiff notes that his “cell door

has about a two inch gap at the bottom,” which allows air to circulate in and out. He further states

that he remained isolated until July 25, 2020.

Beyond his personal experiences, plaintiff accuses the SLCJC of “recklessly” allowing

COVID-19 to spread throughout the jail. He states that “a lot of young officers” know the detainees

“from the streets and allow them to come out of [their] cells, whether they are under isolation or

have the virus.” Plaintiff contends that this has allowed the virus to spread “all over the place.”

Indeed, plaintiff states he “almost had a fist fight” over a detainee who was sneezing and not

wearing a mask. Plaintiff alleges that the jail is in “disorder” and that several officers “have

abandoned [their] post[s].” He asserts that the remaining officers are “overworked,” and that many

of them allow inmates to come out of their cells or “pop [their] own cell doors.” (Docket No. 1 at

4).

As a result of the situation at the SLCJC, plaintiff seeks “permanent or temporary release

from detainment.” (Docket No. 1 at 5). He also seeks unspecified attorney’s fees and damages.

Discussion

Plaintiff is a self-represented litigant who brings this action against the SLCJC pursuant to

42 U.S.C. § 1983. He states that the SLCJC has violated his constitutional rights and put his life

in danger due to its handling of COVID-19. For the reasons discussed below, plaintiff’s complaint

is deficient and subject to dismissal. However, the Court will allow plaintiff to file an amended

complaint.

A. Deficiencies in Complaint

Plaintiff’s complaint names only a single defendant, the SLCJC. The SLCJC, however, is

not a suable entity. 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). Because the only named defendant is not a suable

entity, plaintiff’s action is subject to dismissal.

Even if the Court were to substitute the City of St. Louis as the proper party defendant,

plaintiff’s case would still not survive initial review pursuant to 28 U.S.C. § 1915. A local

governing body such as the City of St. Louis can be sued directly under 42 U.S.C. § 1983. See

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). However, to prevail

on a municipal liability claim, plaintiff must establish the City of St. Louis’s liability for the alleged

conduct. See Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016). Plaintiff’s facts

do not support such liability. See Mick v. Raines, 883 F.3d 1075, 1079 (8th Cir. 2018) (explaining

that liability may attach to a municipality 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”). For this reason as well, plaintiff’s action is subject to dismissal.

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

his complaint according to the instructions set forth below.

B. Amendment Instructions

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).

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 (30) 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. As explained above, plaintiff’s complaint is subject to dismissal, and he is

being ordered to file an amended complaint. Therefore, the Court is not yet convinced that plaintiff

has stated a non-frivolous claim, or that plaintiff will benefit from the assistance of counsel. 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 to proceed in forma pauperis (Docket

No. 3) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 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 plaintiffs motion for appointment of counsel (Docket

No. 2) is DENIED at this time.

IT IS FURTHER ORDERED that the Clerk of Court is directed to 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-

form within thirty (30) days of the date of this order, pursuant to the instructions set forth herein.

IT IS FURTHER ORDERED that if plaintiff does not file an amended complaint on the

Court-form within thirty (30) days, this action will be dismissed without prejudice and without

further notice.

IT IS FURTHER ORDERED that upon receipt of plaintiff’s amended complaint, the

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

Dated this 24th day of August, 2020.

Coatrey Pines

AUDREY G. 17?

UNITED STATES DISTRICT JUDGE

10