Howell v. Department of Justice Services

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ALEXANDER HOWELL, )

)

Plaintiff, )

)

v. ) No. 4:21-CV-1000-HEA

)

DEPARTMENT OF JUSTICE SERVICES, )

)

Defendant. )

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on the motion of self-represented plaintiff Alexander

Howell, a pretrial detainee at St. Louis County Department of Justice Services, 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 $36.91. 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

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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.

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

copy of his inmate account statement. ECF No. 3. A review of plaintiff’s account indicates an

average monthly deposit of $184.54 and an average monthly balance of $55.13. Plaintiff has

insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial

filing fee of $36.91, which is 20 percent of plaintiff’s average monthly deposit.

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.” 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 on its 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 a court must accept factual allegations in the complaint as true but is not

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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, a pretrial detainee, brings this action pursuant to 42 U.S.C. § 1983. The St. Louis

County Department of Justice Services (“SLCDJS”) is named as the sole defendant. Plaintiff

alleges he is being deprived of his constitutional rights for five reasons:

(1) the lack of providing the “safety” and “welfare” of all people, (2) the concept

of the environment is “structured to provide a positive behavior management

system,” but prevents the fulfillment of another right, (3) some physical aspects that

are grossly inadequate, (4) and the most efficient way of creating conditions and

circumstances of lockdown, [and] (5) threats of retaliation, non[-]life threatening

and then later death, for grievance process and the initiation of filing a civil suit.

ECF No. 1 at 3.

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Plaintiff then alleges that “around the dates of March 28 to March 11” he was denied

access to the law library, and “around May” an unidentified officer harassed him by calling him

“it,” “boy,” thug,” and “that.” Plaintiff states that other unnamed officers threatened him for

filing grievances, and on July 20, 2021 his “life was threatened” by a sergeant who placed him

“under imminent danger.” Plaintiff further alleges he is currently being housed in the “hole” with

quarantining inmates “where there is mold and blood on the walls.” Plaintiff states his isolation

from the general population was made without reason or notice.

For relief, plaintiff seeks monetary damages in the amount of 2.5 million dollars, and for

the Court to “drop and/or lessen [his] charges.”

Discussion

Having thoroughly reviewed and liberally construed plaintiff’s complaint, the Court

concludes that it is subject to dismissal. Plaintiff brings this complaint against one defendant, the

SLCDJS. It is well-established that a department or subdivision of local government is not a

“juridical,” or suable entity, under 42 U.S.C. § 1983. Ketchum v. City of West Memphis, Ark., 974

F.2d 81, 82 (1992); 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). Consequently, plaintiff’s complaint is

legally frivolous as to the sole defendant SLCDJS.

Although plaintiff alleges claims regarding his treatment by jail staff and the conditions of

his confinement, the complaint fails to name as defendants the individuals who allegedly harassed

and threatened him, denied him access to the law library, or who placed him in unsanitary living

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conditions. Because the complaint fails to name any individuals as defendants, the Court can only

consider his claims relating to the SLCDJS which, as stated above, are legally frivolous. However,

in consideration of plaintiff’s self-represented status and the nature of the allegations in the

complaint, the Court will allow him to file an amended complaint.

Instructions on Amending the Complaint

Plaintiff is warned that the filing of his 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 this 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

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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).

Plaintiff must not amend a complaint by filing separate documents. Instead, he must file a single,

comprehensive pleading that sets forth her claims for relief.

Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. ECF No. 4. 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

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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 at this time. However, the Court

will entertain a future motion 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 $36.91 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) that the remittance is for an original proceeding.

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.

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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 plaintiff's Motion to Appoint Counsel [ECF No. 4] is

DENIED without prejudice at this time.

IT IS FURTHER ORDERED that if plaintiff fails to ttmely comply with this Opinion,

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

notice.

Dated this 19" day of August, 2021.

HENRY EDWARD AUTREY

UNITED STATES DISTRICT JUDGE