Shepard v. Cape Girardeau County Jail

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

JACOB TAYLOR SHEPARD, )

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Plaintiff, )

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v. ) No. 1:20 CV 186 MTS

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CAPE GIRARDEAU COUNTY JAIL, et al., )

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Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Jacob Taylor Shepard for

leave to commence this civil action without prepayment of the required filing fee, Doc. [8]. 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 $2.00. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court

will direct plaintiff to file a second amended complaint in accordance with the instructions set forth

in this order.

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 $10.00,

until the filing fee is fully paid. Id.

In support of his motion for leave to proceed in forma pauperis, plaintiff has submitted a

certified inmate account statement, Doc. [10]. The account statement shows an average monthly

deposit of $10.00. The Court will therefore assess an initial partial filing fee of $2.00, 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).

Background

Plaintiff is a self-represented litigant who is currently incarcerated at the Eastern Reception,

Diagnostic and Correctional Center in Bonne Terre, Missouri. On August 24, 2020, he submitted

a partially-completed prisoner civil rights complaint form, in which he failed to list any defendants.

Plaintiff also neglected to either file a motion for leave to proceed in forma pauperis or pay the

filing fee.

On November 20, 2020, the Court directed plaintiff to file an amended complaint on a

Court-provided form, and provided instructions on how to do so. The Court further ordered

plaintiff to either file for leave to proceed in forma pauperis or pay the filing fee. He was given

thirty days in which to comply.

On January 8, 2021, plaintiff filed an amended complaint, along with a motion for leave to

proceed in forma pauperis, and a motion for appointment of counsel. Docs. [7, 8, 9].

The Amended Complaint

Plaintiff’s amended complaint is brought pursuant to 42 U.S.C. § 1983. He names the Cape

Girardeau County Jail and the St. Francis Medical Center as defendants. Doc. [4 at 2-3]. His

“Statement of Claim” consists of what appears to be a chart, with names connected to allegations

by way of arrows. None of the individuals mentioned in the “Statement of Claim” are listed as

defendants.

As best the Court can tell, plaintiff is complaining about injuries sustained after

correctional officers used force against him at the Cape Girardeau County Jail. Without providing

any context, plaintiff alleges that Officer Reavis “hit [him] in [his] chest cavity in the isolation

cell,” while Officer Friedrichs “sprayed” him. Doc. [7 at 4]. Plaintiff apparently suffered a “head

injury” in the cell while he was in handcuffs, which rendered him unconscious.

Plaintiff also asserts that an individual named Cody Palmer “popped [his] chest cavity back

straight and line it up enough for it to heal back together.” Id. The “Statement of Claim” does not

indicate Palmer’s job title or employer. Plaintiff further states that an individual named Carr placed

“meds in [his] drink when [he] refused them.” Id.

Though plaintiff’s “Statement of Claim” mostly concerns his being injured due to

correctional officers using force against him, he also asserts that he made a report against Officer

Reavis under the Prison Rape Elimination Act (PREA). Id. Following this report, Officer Reavis

refused to allow plaintiff to see the supervisor, and “took [him] to the shower himself to watch

[him] shower.” Id.

As a result of this incident, plaintiff is seeking unspecified damages for pain and suffering,

hospital bills, and future medical expenses. Doc. [7 at 10].

Discussion

Plaintiff has filed an amended complaint pursuant to 42 U.S.C. § 1983. Because plaintiff

is proceeding in forma pauperis, the Court has reviewed the amended complaint under 28 U.S.C.

§ 1915. Based on that review, the Court has determined that this action is subject to dismissal.

However, plaintiff will be given an opportunity to file a second amended complaint according to

the instructions set forth in this order.

A. Deficiencies in Amended Complaint

Plaintiff’s amended complaint is deficient for several reasons. First, plaintiff has named

the Cape Girardeau County Jail as a defendant. A county jail, however, is not a legal entity

amenable to suit. Owens v. Scott Cty. Jail, 328 F.3d 1026, 1027 (8th Cir. 2003) (stating that “county

jails are not legal entities amenable to suit”). See also 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). As such, the claim against the Cape Girardeau County

Jail is subject to dismissal.

Second, with regard to St. Francis Medical Center, plaintiff has not adequately

demonstrated that St. Francis acted under color of state law. See Carlson v. Roetzel & Andress,

552 F.3d 648, 650 (8th Cir. 2008) (explaining that a defendant in a 42 U.S.C. § 1983 action can

only be held liable for actions taken under color of state law). Even if St. Francis Medical Center

is assumed to be a state actor, plaintiff has not established that his constitutional rights were

violated due to a St. Francis policy, custom, or official action. See Stearns v. Inmate Services Corp.,

957 F.3d 902, 906 (8th Cir. 2020) (explaining that the “proper test” for determining whether a

corporation acting under color of state law is liable under 42 U.S.C. § 1983 “is whether there is a

policy, custom, or action by those who represent…official policy that inflicts injury actionable

under § 1983”).

Finally, as to the individuals listed in the “Statement of Claim,” plaintiff has not properly

identified them as defendants, despite being instructed on how to do so in the Court’s order of

November 20, 2020. In particular, plaintiff has not placed these individuals in the case caption,

has not listed them in the section of the form complaint to identify the parties, has not provided

their job titles or employers, and has not asserted the capacity in which they are sued. Furthermore,

plaintiff has not provided a short and plain statement of his claim against each specific defendant.

For all these reasons, plaintiff’s amended complaint fails to state a claim and is subject to

dismissal. However, because plaintiff is a self-represented litigant, the Court will direct him to file

a second amended complaint according to the instructions set forth below.

B. Amendment Instructions

Plaintiff should type or neatly print his second 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 second

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. Furthermore, in the section

of the form complaint for identifying the parties, plaintiff must provide the name, job title, and

employer for each defendant he is suing. Additional sheets of paper may be used as necessary.

Plaintiff should fill out the complaint form in its entirety. The second amended complaint

must be signed.

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 Court notes that in his amended complaint, plaintiff appeared to be raising a claim

about the use of force against him, and the injuries he suffered. However, he also added an

allegation regarding a PREA violation, which seemed to have no relation to his other claim. The

second 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 his amended complaint, plaintiff provided a “Statement of Claim” that resembled a chart,

with names and arrows and allegations arranged in a confusing manner. This is not adequate to

state a claim. In structuring his second 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 a second amended complaint completely replaces the

original complaint and the amended complaint. This means that claims that are not re-alleged in

the second 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 second amended complaint, the Court will review it pursuant to 28

U.S.C. § 1915. Plaintiff’s failure to follow the instructions set forth above may result in the

dismissal of this action. Furthermore, if plaintiff fails to file a second amended complaint on a

Court-provided form within thirty days, the Court will dismiss this action without prejudice and

without further notice.

C. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. Doc. [9]. 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). 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. In particular, the Court is not convinced that plaintiff has stated a

nonfrivolous claim, and that either the Court or plaintiff will benefit from the assistance of counsel.

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, if appropriate.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis,

Doc. [8] is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $2.00

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 plaintiff's motion for appointment of counsel Doc. [9]

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 a second amended complaint on a

Court form within thirty (30) days of the date of this order, in accordance with the instructions

set forth above.

IT IS FURTHER ORDERED that if plaintiff fails to file a second amended complaint on

a Court form within thirty (30) days of the date of this order, this action will be dismissed without

prejudice and without further notice.

IT IS FURTHER ORDERED that upon receipt of plaintiffs second amended complaint,

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

Dated this 11th day of March, 2021. oq Me

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UNITED STATES DISTRICT JUDGE

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