# Shepard v. Cape Girardeau County Jail

> District Court, E.D. Missouri · April 6, 2021

URL: https://www.frixlaw.com/law-library/cases/10234837

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** April 6, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10234837

## How later opinions describe it (automated extraction)

- 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”
- stating that a defendant can only be held liable pursuant to 42 U.S.C. § 1983 for actions taken under color of state law
- affirming district court dismissal of county jail and sheriff’s department as parties because they are not suable entities
- stating that “county jails are not legal entities amenable to suit”
- stating that § 1983 liability “requires a causal link to, and direct responsibility for, the deprivation of rights”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

JACOB TAYLOR SHEPARD, )
)
Plaintiff, )
)
v. ) No. 1:20 CV 186 MTS
)
CAPE GIRARDEAU COUNTY JAIL, et al., )
)
Defendants. )

MEMORANDUM AND ORDER
This matter comes before the Court on review of Plaintiff Jacob Taylor Shepard’s second
amended complaint pursuant to 28 U.S.C. § 1983. For the reasons discussed below, the Court will
direct Plaintiff to file a third amended complaint according to the instructions contained in this
order.
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. At the time relevant to the
complaint, however, he was an inmate at the Cape Girardeau County Jail.
On August 24, 2020, Plaintiff filed a civil action on a Court-provided 42 U.S.C. § 1983
form. Doc. [1]. Plaintiff left large parts of the complaint form blank. For example, he did not name
any defendants, fill out a “Statement of Claim,” describe any injuries, or request any relief.
In a letter attached to the form complaint, Plaintiff stated that he does not have the name
of the defendant. Doc. [1] at 10. In a second letter, Plaintiff explained that he was prescribed
Invega, and that it worsened his symptoms from paranoid schizophrenia, bipolar disorder, and
depression, and gave him suicidal thoughts. Doc. [1] at 11. He asserted that he tried to commit
suicide a total of thirty-eight times in the last four months, and that “they refuse to let me go to the

hospital to figure out” what is going on. Plaintiff attributed his medical issues to the medication
“they have prescribed,” though he did not know the extent of his medical problems. Doc. [1] at 12.
Along with the complaint, Plaintiff filed a motion for appointment of counsel. Doc. [2].
However, Plaintiff did not pay the filing fee or file a motion for leave to proceed in forma pauperis.
On November 20, 2020, the Court directed Plaintiff to either file a motion for leave to
proceed in forma pauperis or pay the filing fee. Doc. [4]. Because his initial complaint did not
name any defendants, he was also ordered to file an amended complaint on a Court-provided form.
The Court’s order provided instructions for filling out his amended complaint.
On January 8, 2021, Plaintiff filed a motion for leave to proceed in forma pauperis. Doc.

[8]. The motion was granted, and Plaintiff was assessed an initial partial filing fee. On that same
date, Plaintiff also submitted an amended complaint. Doc. [7]. The amended complaint was on a
Court-provided 42 U.S.C. § 1983 complaint form. The Cape Girardeau County Jail and St. Francis
Medical Center were named as defendants.
The amended complaint’s “Statement of Claim” consisted of what appeared to be a chart,
with names connected to allegations by way of arrows. None of the individuals mentioned in the
“Statement of Claim” were listed as defendants.
As best the Court could tell, Plaintiff was complaining about injuries sustained after
correctional officers used force against him at the Cape Girardeau County Jail. Without providing
any context, Plaintiff alleged that Officer Reavis “hit [him] in [his] chest cavity in the isolation
cell,” while Officer Friedrichs “sprayed” him. Doc. [7] at 4. Furthermore, Plaintiff apparently
suffered a “head injury” in the cell while he was in handcuffs, which rendered him unconscious.
It was unclear whether this took place on the same occasion that he was allegedly hit in the chest
by Officer Reavis.

Plaintiff also asserted that an individual named Cody Palmer “popped [his] chest cavity
back straight and line[d] it up enough for it to heal back together.” The “Statement of Claim” does
not indicate Palmer’s job title or employer. Plaintiff further stated that an individual named Carr
placed “meds in [his] drink when [he] refused them.”
Though Plaintiff’s amended complaint mostly dealt with an alleged injury that occurred
when correctional officers used force against him, he also asserted that he made a report against
Officer Reavis under the Prison Rape Elimination Act (PREA). Following this report, Officer
Reavis refused to allow Plaintiff to see the supervisor, and “took [him] to the shower himself to
watch [him] shower.”

As a result of this incident, Plaintiff sought unspecified damages for pain and suffering,
hospital bills, and future medical expenses.
Because Plaintiff was proceeding in forma pauperis, the Court reviewed his amended
complaint pursuant to 28 U.S.C. § 1915. Based on that review, the Court determined that the
amended complaint was subject to dismissal. The Court specifically noted three deficiencies. First,
Plaintiff had named the Cape Girardeau County Jail as a defendant, but a county jail is not a
distinctly suable entity. Doc. [12] at 5. Second, with regard to St. Francis Medical Center, Plaintiff
had not established that St. Francis acted under color of state law, or injured him due to a policy,
custom, or official action. Doc. [12] at 5-6. Finally, with regard to the individuals listed in the
“Statement of Claim,” the Court explained that they were not properly identified as defendants,
despite being instructed about this issue in the Court’s November 20, 2020 order. Doc. [12] at 6.
In particular, Plaintiff had not identified these individuals in the case caption, had not listed them
in the appropriate section of the form complaint, had not provided their job titles or employers,
and had not asserted the capacity in which they were sued. Plaintiff further neglected to provide a

short and plain statement of his claim against each defendant.
Rather than dismissing the amended complaint, the Court gave him another opportunity to
amend it. The Court again provided detailed instructions regarding the filing of a second amended
complaint. As to the naming of defendants, the Court advised Plaintiff on the necessity of properly
identifying the persons he was attempting to sue. He was explicitly told that all defendants had to
be clearly listed, and that the name, job title, and employer of each defendant must be provided.
With regard to the “Statement of Claim,” the Court instructed Plaintiff on the necessity of
providing a short and plain statement of the factual allegations supporting his claim against each
defendant. Doc. [12] at 7. Plaintiff was also told of the necessity to specify whether a defendant

was sued in an official capacity, and individual capacity, or both. The Court warned Plaintiff that
the failure to follow the instructions provided in the order might result in the dismissal of his case.
Doc. [12] at 8-9.
Plaintiff was given thirty days in which to file a second amended complaint. He submitted
the second amended complaint on March 22, 2021.
The Second Amended Complaint
Plaintiff’s second amended complaint is on a Court-provided 42 U.S.C. § 1983 form. He
names the Cape Girardeau Sheriff’s Department and St. Francis Hospital as defendants. Doc. [13]
at 2-3.
In the “Statement of Claim,” Plaintiff alleges that his “skull was split by Dacus and another
officer” in May 2020, while he was in the Cape Girardeau County Jail. Doc. [13] at 3. He asserts
that his head was injured when they “slammed” it “against the wall.”
Subsequently, Plaintiff filed multiple sick calls, but “they waited until July to take me to
the hospital after [he] almost died.” He states that “Ms. Carr was in the cell when it happened.” He

claims that employee malpractice occurred, and that he suffered a personal injury, stating that his
“head is still messed up and it has been almost a year.” Doc. [13] at 3-4.
Plaintiff also states that he “reported the PREA event and [he] was retaliated against for
filing this 1983.” Doc. [13] at 4. With regard to the purported retaliation, Plaintiff references a
second 42 U.S.C. § 1983 case that he has filed.1
Plaintiff notes that he is “disabled” and being made to do “paperwork” in which he does
not “know what to do or say.” He accuses the Court of trying “to protect [the] county jail” by
refusing to give him “an attorney that has the means and the know how to file and take care of
everything.” Plaintiff closes the “Statement of Claim” by asserting that he has memory loss and

does not have access to his notes.
As a result of this incident, Plaintiff seeks “more than [$] 75,000” in damages. Doc. [13]
at 5.
Discussion
Plaintiff is a self-represented litigant who brings this action pursuant to 42 U.S.C. § 1983,
naming the Cape Girardeau County Sheriff’s Department and St. Francis Hospital as defendants.
Because Plaintiff is proceeding in forma pauperis, the Court has reviewed his second amended
complaint pursuant to 28 U.S.C. § 1915. Based on that review, the Court has determined that the

1 The case is Shepard v. Cape Girardeau Sheriff’s Office, et al., No. 1:21-cv-21-SNLJ (E.D. Mo. Feb. 4, 2021). The
matter is still pending.
second amended complaint shares many of the same deficiencies as the amended complaint, and
is subject to dismissal. However, the Court will give Plaintiff a third opportunity to amend his
complaint in accordance with the instructions set forth below.
A. Deficiencies in Complaint
Plaintiff’s second amended complaint is deficient and subject to dismissal for several

reasons. First, Plaintiff has named the Cape Girardeau County Sheriff’s Department as a defendant.
However, a sheriff’s department is a department of local government, and not a distinctly suable
entity. See Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (affirming
dismissal of West Memphis Police Department and West Memphis Paramedic Services because
they were “not juridical entities suable as such”); Owens v. Scott Cty. Jail, 328 F.3d 1026, 1027
(8th Cir. 2003) (stating that “county jails are not legal entities amenable to suit”); 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 Sheriff’s Department fails.

Second, with regard to St. Francis Hospital, Plaintiff has failed to demonstrate that the
hospital acted under color of state law, despite the Court specifically advising him of this
requirement. See Carlson v. Roetzel & Andress, 552 F.3d 648, 650 (8th Cir. 2008) (stating that a
defendant can only be held liable pursuant to 42 U.S.C. § 1983 for actions taken under color of
state law). Even if St. Francis Hospital is assumed to be a state actor, Plaintiff has not shown that
he was injured due to a St. Francis policy, custom, or official action. See Stearns v. Inmate Services
Corp., 957 F.3d 902, 906 (8th Cir. 2020).
Third, Plaintiff appears to be attempting to sue various individuals, but he has not properly
identified them as defendants. Again, in its previous order, the Court specifically instructed
Plaintiff that each defendant had to be placed in the caption and listed in the appropriate section of
the form complaint. Furthermore, Plaintiff needed to provide the job title and employer of each
defendant, as well as the capacity in which each defendant was sued. Plaintiff has not done this.
Instead, he provides two names in the “Statement of Claim” without identifying these individuals
as defendants, or following the Court’s instructions on how to state his allegations against them.

For all these reasons, Plaintiff’s second 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 third amended complaint according to the instructions set forth below.
B. Amendment Instructions
Plaintiff should type or neatly print his third 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 third
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 is required to properly identify each individual or entity that he is trying to sue.
Plaintiff should fill out the complaint form in its entirety. The third 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 second 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, and a retaliation claim, neither of which appear related to
the excessive force and deliberate indifference claims. As before, the Court advises Plaintiff that
the third 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 third 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.
For example, if Plaintiff intends to sue Officer Dacus, he should identify Officer Dacus as
a defendant in the case caption, and in the appropriate section of the form complaint. In the
“Statement of Claim” section, Plaintiff should write down Officer Dacus’s name. Then, in
numbered paragraphs beneath that name, he should write down exactly what Officer Dacus did to
him to violate his constitutional rights. Plaintiff should do this with each separate 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 third amended complaint completely replaces his
prior complaints. This means that claims that are not re-alleged in the third 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 third 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 third amended complaint on a Court-provided
form within thirty days, the Court will dismiss this action without prejudice and without further
notice.

C. Motion for Extension of Time to Pay Filing Fee
Plaintiff has filed a document with the Court that has been construed as a motion for an
extension of time in which to pay the initial partial filing fee. Doc. [14]. Having reviewed the
motion, the Court finds that it should be granted. Plaintiff will be given a thirty day extension in
which to pay the initial partial filing fee.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for an extension of time in which to
pay the initial partial filing fee Doc. [14] 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 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 third 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 third 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 Plaintiff’s third amended complaint,
the Court will review it pursuant to 28 U.S.C. § 1915.
Dated this 6th day of April, 2021. | CT | i :

MATTHEW T. SCHELP
UNITED STATES DISTRICT JUDGE

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10234837. Public record. Not legal advice.