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, )

et al., )

)

Defendants. )

OPINION, MEMORANDUM AND ORDER

This matter is before the Court upon the filing of an amended complaint by self-represented

plaintiff Alexander Howell,1 a pretrial detainee at the St. Louis County Department of Justice

Services. ECF No. 6. The Court previously granted plaintiff in forma pauperis status. ECF No. 5.

The Court has carefully reviewed the amended complaint and, for the reasons discussed below,

will allow plaintiff another opportunity to cure the pleading deficiencies and will direct her to

submit a second amended complaint.

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

1 Plaintiff states she identifies as female. The Court will, therefore, use the pronouns “she” and “her” when referring

to Plaintiff.

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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

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).

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The Complaint

Self-represented plaintiff Alexander Howell filed this action on August 10, 2021 on a

Court-provided complaint form pursuant to 42 U.S.C. § 1983. The St. Louis County Department

of Justice Services (“SLCDJS”) was named as the sole defendant. Plaintiff alleged she was being

deprived of her 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.

Plaintiff further alleged that “around the dates of March 28 to March 11” she was denied

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

“it,” “boy,” thug,” and “that.” Plaintiff stated other unnamed officers threatened her for filing

grievances, and on July 20, 2021 her “life was threatened” by a sergeant who placed her “under

imminent danger.” Plaintiff further complained she was being housed in the “hole” with

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

from the general population was made without reason or notice. For relief, plaintiff sought

monetary damages in the amount of 2.5 million dollars, and for the Court to “drop and/or lessen

[her] charges.”

On August 19, 2021, the Court reviewed plaintiff’s complaint pursuant to 28 U.S.C. § 1915

and determined it was subject to dismissal. ECF No. 5. Plaintiff’s claims against the sole defendant,

SLCDJS, were legally frivolous because it was not a “juridical,” or suable entity, under 42 U.S.C.

§ 1983. The complaint also failed to name as defendants the individuals who allegedly harassed

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

conditions.

Because plaintiff is a self-represented litigant, the Court directed her to file an amended

complaint to cure her pleading deficiencies. Plaintiff was provided with detailed instructions on

how to properly submit her amended complaint.

The Amended Complaint

On August 27, 2021, plaintiff filed an amended complaint on a Court-provided ‘Prisoner

Civil Rights Complaint’ form pursuant to 42 U.S.C. § 1983. ECF No. 6. Plaintiff names eighteen

defendants as follows: (1) Department of Justice Services; (2) M. Lee, Officer; (3) L. Johnson,

Officer; (4) J. Showmaker, Sergeant; (5) Tim Ishman, Major; (6) L. Ford, Officer; (7) Jones, 8th

Floor Officer; (8) M. Winston, Officer; (9) T. Rodgers, Phone Tech; (10) May Stearn, Case

Manager; (11) M. Wolf, Sergeant; (12) E. Porter, Officer; (13) Patrick, Officer; (14) A. McKinney,

Prea Coordinator; (15) Doug Burris, Director; (16) A. Elrod, 8th Floor Officer; (17) Wright, 8th

Floor Sergeant; and (18) S. Maddex, Sergeant. All defendants are alleged to be employees of the

SLCDJS, except for T. Rodgers, who is alleged to be an employee of Securus Technologies.

Plaintiff indicates all defendants are being sued in their official capacities, except for L. Johnson,

who is sued in both his official and individual capacities

Similar to the original complaint, plaintiff first lists several reasons for why her

constitutional rights are allegedly being deprived:

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

concept of the environment is “structured” to provide a positive behavior

management system by fulfilling inmates rights, but instead prevents the fulfillment

of another right; (3) some physical aspects of the facility that [are] grossly

inadequate; (4) the most efficient way of creating conditions of lockdown that make

self improvement possible and degeneration unlikely; (5) threats of retaliation, non

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life threatening and then later death, for grievance process and the initiation of filing

a civil suit; (6) gross staff conduct and communication; (7) denial of access to courts

by legal library and correspondence; [and] (8) inadequate medical attention.

ECF No. 6 at 6-7.

Plaintiff then proceeds to allege various grievances against the defendants. Her statement

of claim is presented as a disjointed, stream of consciousness narrative concerning multiple

unrelated topics mostly lacking factual support. Plaintiff states she has been “denied proper legal

assistance for the law library by May Stearn, Sergeant M. Wolf, and Sergeant J. Showmaker” and

harassed by Officer L. Johnson for her feminine pronouns. Plaintiff complains the conduct of

“multiple officers” is “gross” because M. Lee “comes to work or get[s] high on the clock,”

“Sergeant Wolf makes racist remarks,” and Officers Paige and Porter “gave [her] another inmates

paperwork.” Plaintiff asserts that staff shortages at the SLCDJS “led to deprivation of rec time and

health form turn-ins by medicine staff.”

Plaintiff alleges Officers Winston, Lee, and Elrod shared confidential information with

inmates, Major Ishmon transferred her to a cell with bed bugs and blood on the wall, and she was

housed in a pod with moldy showers and quarantining inmates. Plaintiff complains T. Rodgers

“could not fix the phones” which caused her and other inmates from making calls for eighteen

days. Plaintiff further states she was punished by Officer Patrick “for expressing [her]self to an

inmate” and A. McKinney prevented her from being assigned to the general population.

Plaintiff asserts she wrote a letter to the Director of SLCDJS, who “refuses to come speak

to [her],” and, instead, “sends other administrative personnel to fix a problem that doesn’t get

fixed.” She alleges Sergeant Maddex “threatened to retaliate against [her] by stating he ‘kill’

behind his job and family” and she “better focus on [her] civil suit.” She asserts Officers Jones and

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Lee threatened to retaliate against her for writing grievances. Lastly, plaintiff she complains of a

bug infestation in the recreation yard, issues with “food consistency,” and a lack of “audio on

intercoms or cameras.”

Plaintiff describes her injuries as migraines, anxiety, and depression. Plaintiff seeks

monetary damages in the amount of five million dollars for “inequality, [the] due process clause,

and deprivation of liberty.”

Discussion

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

Court concludes that it is subject to dismissal. However, in consideration of plaintiff’s self-

represented status, the Court will allow her a second opportunity to file an amended complaint.

A. Claims against SLCDJS

Similar to her original complaint, plaintiff once again names the SLCDJS as a defendant.

By Opinion, Memorandum and Order, dated August 19, 2021, the Court explained that a

department or subdivision of local government is not a suable entity under 42 U.S.C. § 1983. ECF

No. 5 (citing 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 defendant

SLCDJS.

B. Official Capacity Claims

Plaintiff’s claims against all eighteen defendants in their official capacities are also subject

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to dismissal. In an official capacity claim against an individual, the claim is actually “against the

governmental entity itself.” See White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017). A “suit

against a public employee in his or her official capacity is merely a suit against the public

employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). See also

Brewington v. Keener, 902 F.3d 796, 800 (8th Cir. 2018) (explaining that official capacity suit

against a sheriff and his deputy “must be treated as a suit against the County”); Kelly v. City of

Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016) (stating that a “plaintiff who sues public

employees in their official, rather than individual, capacities sues only the public employer”); and

Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (stating that a “suit against a public

official in his official capacity is actually a suit against the entity for which the official is an agent”).

Unlike SLCDJS, St. Louis County as a local governing body can be sued 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). In order

to prevail on this type of claim, however, the plaintiff must establish the governmental entity’s

liability for the alleged conduct. Kelly, 813 F.3d at 1075. Such liability may attach 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.” Mick v. Raines, 883 F.3d 1075, 1079

(8th Cir. 2018). Here, plaintiff has not alleged any facts against St. Louis County to support the

proposition that it has an unconstitutional policy or custom, or that it has been deliberately

indifferent in failing to train or supervise its employees. Therefore, plaintiff’s official capacity

claims are subject to dismissal. See Ulrich v. Pope Cty., 715 F.3d 1054, 1061 (8th Cir. 2013)

(affirming district court’s dismissal of Monell claim where plaintiff “alleged no facts in his

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complaint that would demonstrate the existence of a policy or custom” that caused the alleged

deprivation of plaintiff’s rights).

C. Individual Capacity Claims

The only defendant named in his individual capacity is Officer L. Johnson. Plaintiff alleges

she was harassed by Officer L. Johnson in “May, June, July, and current.” Plaintiff attributes the

harassment to her use of feminine pronouns. She does not provide any additional factual support,

such as how Officer Johnson harassed her. As pled, this claim is subject to dismissal.

Generally, “verbal threats made by a state-actor do not constitute a § 1983 claim.” Turner

v. Mull, 784 F.3d 485, 492 (8th Cir. 2015). This is because the Constitution does not guard against

all intrusions on a person’s peace of mind. King v. Olmstead County, 117 F.3d 1065, 1067 (8th

Cir. 1997). Typically, fear or emotional injury resulting solely from threats or verbal harassment

is insufficient to constitute the violation of an identified liberty interest. Id. Additionally, plaintiff

failed to allege sufficient facts describing the conduct she believes violated her rights. Without a

factual underpinning, plaintiff’s allegation amounts to a legal conclusion that is not entitled to the

presumption of truth. See Wiles v. Capitol Indem. Corp., 280 F.3d 868, 870 (8th Cir. 2002) (stating

that while a “court must accept allegations of fact as true . . . the court is free to ignore legal

conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions

cast in the form of factual allegations”). Thus, her general and conclusory statement that Officer

Johnson harassed her is simply not enough to state a claim for relief under the Eighth Amendment.

See Iqbal, 556 U.S. at 678.

The Court further notes that the amended complaint is subject to dismissal because it

appears to advance multiple claims against multiple defendants concerning unrelated events that

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occurred over several months. Such allegations brought under the same complaint are

impermissible. Rule 20(a)(2) of the Federal Rules of Civil Procedure governs joinder of

defendants, and provides:

Persons . . . may be joined in one action as defendants if: (A) any right to relief is

asserted against them jointly, severally, or in the alternative with respect to or

arising out of the same transaction, occurrence, or series of transactions or

occurrences; and (B) any question of law or fact common to all defendants will

arise in the action.

Fed. R. Civ. P. 20(a)(2). As such, a plaintiff cannot join, in a single lawsuit, multiple claims against

different defendants related to events arising out of different transactions or occurrences. In other

words, “Claim A against Defendant 1 should not be joined with unrelated Claim B against

Defendant 2.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). For example, in the instant

amended complaint, plaintiff’s claim for alleged harassment by Officer Johnson is unrelated to her

claim against T. Rogers2 for being unable to fix the phone system, both of which are unrelated to

her allegation of inadequate medical attention. These claims bear little or no relationship to each

other. Unrelated claims against different defendants belong in different suits, in part to ensure that

prisoners pay the required filing fees.

Rule 18(a) of the Federal Rules of Civil Procedure governs joinder of claims, and provides:

A party asserting a claim to relief as an original claim, counterclaim, cross claim,

or third party claim, may join, either as independent or as alternate claims, as many

claims, legal, equitable, or maritime, as the party has against an opposing party.

Fed. R. Civ. P. 18(a). Therefore, multiple claims against a single defendant are valid. That is,

plaintiff may name one defendant and bring as many claims against that defendant as she desires.

2 Plaintiff’s claims against T. Rogers are also subject to dismissal because he appears to be an employee of Securus

Technologies, a private corporation. It is well settled that only state actors, not private individuals, are liable under

§ 1983. Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 855 (8th Cir. 2001)

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On August 19, 2021, the Court issued an Opinion, Memorandum and Order directing

plaintiff to file an amended complaint in compliance with explicit detailed instructions. ECF No.

5. As to the “Statement of the Claim” section, plaintiff was instructed to “begin by writing the

defendant’s name” and in “separate, numbered paragraphs under that name . . . set forth a short

and plain statement of the facts [to] support [her] claim or claims against that defendant.” Id. at 5

(citing Fed. R. Civ. P. 8(a)). Plaintiff was further instructed to limit each paragraph to a single set

of circumstances. Id. at 6 (citing Fed. R. Civ. P. 10(b)). Plaintiff failed to comply with these

directions. To the contrary, she set forth her allegations in a stream of consciousness manner that

would make it very difficult for the defendants to admit or deny her allegations. Plaintiff’s non-

compliance with Rules 8 and 10 also makes it challenging for this Court to review her amended

complaint pursuant 28 U.S.C. § 1915(e)(2) for the purpose of determining whether she has

sufficiently alleged constitutional violations.

Lastly, plaintiff inappropriately attached to her amended complaint an alternative form

complaint, ECF No. 6-3, which contains similar allegations against the same eighteen defendants.

Plaintiff explained: “If the last form was incomplete, here is a new form to replace the original and

last complaint. This would become my amended complaint.” The Court has previously instructed

her that such a filing is inappropriate. See Opinion, Memorandum and Order, dated August 19,

2021, at 6 (“Plaintiff must not amend a complaint by filing separate documents. Instead, [s]he must

file a single, comprehensive pleading that sets forth her claims for relief.”).

Although plaintiff’s amended complaint is subject to dismissal in its entirety for the reasons

explained above, the Court will allow her one final opportunity to cure the pleading deficiencies

and direct her to file a second amended complaint.

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Instructions on Amending the Complaint

Plaintiff is warned that the filing of her second amended complaint replaces the amended

and original complaints, 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 her. 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 second amended complaint, plaintiff must state the first and

last name, to the extent she knows it, of each defendant she 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 her claim. Plaintiff must also specify

whether she 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 her 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

her claims 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, she

may set forth as many claims as she has against that defendant. See Fed. R. Civ. P. 18(a). If

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Plaintiff names more than one defendant, she 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 her. See Madewell v. Roberts, 909 F.2d 1203, 1208

(8th Cir. 1990). 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). In order to state an actionable civil

rights claim against each defendant, plaintiff must set forth specific factual allegations showing

what that particular defendant actually did, or failed to do, that violated the plaintiff’s federally-

protected rights. See West v. Atkins, 487 U.S. 42, 48 (1988); Ellis v. Norris, 179 F.3d 1078, 1079

(8th Cir. 1999) (a plaintiff must plead facts showing each named defendant’s personal involvement

in the alleged constitutional wrongdoing); see also Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995)

(respondeat superior theory inapplicable in § 1983 cases).

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

a single, comprehensive pleading that sets forth her claims for relief.

Second Motion to Appoint Counsel

Plaintiff has filed a second motion to appoint counsel. ECF No. 7. In civil cases, a self-

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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 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 again 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 she 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 her claims to the Court.

The Court will therefore deny her second motion for appointment of counsel 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, within thirty (30) days of the date of this Opinion,

Memorandum and Order, plaintiff shall submit a second amended complaint in accordance with

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the instructions set forth herein.

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.

IT IS FURTHER ORDERED that plaintiff's second motion to appoint counsel [ECF No.

7) 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 17" day of September, 2021.

__babeed dp

UNITED STATES DISTRICT JUDGE

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