Ausler v. Hopgood

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MARCUS AUSLER, )

)

Plaintiff, )

)

v. ) No. 4:21-cv-00644-JAR

)

DALE GLASS, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Marcus Ausler for leave to

commence this civil action without prepayment of the required filing fee. (Docket 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 $26.36. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court

will order plaintiff to file an amended complaint on a Court 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 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 attached a copy

of his inmate account statement to his complaint. (Docket No. 1-2). The account statement shows

an average monthly deposit of $131.81. The Court will therefore assess an initial partial filing fee

of $26.36, 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, 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 28 § 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 a pretrial detainee at the St. Louis

City Justice Center (CJC) in St. Louis, Missouri. He brings this civil action pursuant to 42 U.S.C.

§ 1983, alleging the use of excessive force while he was an inmate at both the CJC and the St.

Louis Medium Security Institution (MSI). His complaint names sixteen separate defendants:

Commissioner Dale Glass; Superintendent Adrian Barnes; Deputy Commissioner George Hayes;

Superintendent Jeffrey E. Carson; Lieutenant Javan Fowlkes; Lieutenant Archibald; Lieutenant

Thomas; Officer Lester; Officer Michael Allen; Officer Randy Powell; Officer Paul Hopgood;

Officer Paul Tillery; Officer Che Boatman; Officer Robinson; Lieutenant Sidney Turner; and

Officer John Doe. (Docket No. 1 at 2-3, 11). Defendants Glass, Barnes, Hayes, and Carson are

sued in their official capacities only, while defendants Fowlkes, Archibald, Thomas, Lester, Allen,

Powell, Hopgood, Tillery, Boatman, Robinson, Turner, and Doe are sued in their individual

capacities only.

As noted above, plaintiff’s allegations encompass several different use-of-force incidents

at two separate institutions. Plaintiff begins his “Statement of Claim” with events at the CJC.

(Docket No. 1 at 11). He asserts that the first incident took place on April 2, 2020, when Officer

Wilkes alerted Lieutenant Turner about inmates tampering “with their lock devices.” Lieutenant

Turner used the intercom to tell plaintiff to secure his door. Plaintiff responded by saying the door

was secure. Lieutenant Turner, however, was under the impression that his door was blocked.

Lieutenant Turner directed that plaintiff’s cell door be opened. According to plaintiff,

Lieutenant Turner advised him to step to the back of his cell while asking him who had tampered

with his lock device. (Docket No. 1 at 11-12). Plaintiff responded by telling her that he did not

know. (Docket No. 1 at 12). Lieutenant Turner told him that he would be handcuffed, but plaintiff

refused to comply. Following this refusal, plaintiff alleges that Lieutenant Turner rushed him “by

[his] throat to the back of [his] cell” without giving him “a warning or command.”

Plaintiff claims that Lieutenant Turner held him by his throat, choking him out. She also

placed her handcuffs “on her right hand like brass knuckles and threaten[ed] to do [bodily] harm.”

Plaintiff struggled with Lieutenant Turner and told her that he could not breathe. In response, she

threatened to spray mace into his mouth. At that point, Lieutenant Turner indeed used her mace to

spray plaintiff in his “face and mouth excessively [and] nonstop.”

Eventually, plaintiff was taken to solitary confinement by Lieutenant Wilburn, where he

was placed in a small room “to marinate in mace.” (Docket No. 1 at 12-13). Plaintiff states that he

could not breathe and passed out, injuring his nose. (Docket No. 1 at 13). He also states that he

hurt his back and that the mace caused his skin to peel off, but he was not given medical treatment.

Plaintiff asserts that he was left in the cell for four hours and not given a shower.

The second incident plaintiff relates also took place at the CJC, this time on September 29,

2020. According to plaintiff, Lieutenant Fowlkes used mace on his “whole entire body from head

to toe four times.” Plaintiff contends that he did not do anything to provoke Lieutenant Fowlkes,

and that Fowlkes did not give any warning, command, or directive. He states that he was then left

for ten minutes to “marinate.”

After ten minutes, Lieutenant Fowlkes placed plaintiff in handcuffs and leg shackles, which

he complains were too tight. Lieutenant Fowlkes, along with Officers Allen, Hopgood, Boatman,

Tillery, and Powell – who were members of Lieutenant Fowlkes’s “Tactical Team” – escorted

plaintiff to medical. Plaintiff refused a shower and medical treatment. He was then placed in

restraints “in the frigid air,” without his shirt on. Plaintiff states that Lieutenant Fowlkes, Officer

Allen, Officer Hopgood, Officer Powell, Officer Boatman, and Officer Tillery put the restraint

bands on his body so tightly that it left bruises. (Docket No. 1 at 14).

Plaintiff states that he was in the restraint chair for three-and-a-half hours, and that he was

not given food, a restroom break, or the chance to stretch his legs. He further asserts that he could

hardly breathe, and that a nurse did not check to see if he was properly secured. The mace on his

skin left it swollen and peeling, while he also suffered “emotional stress, posttraumatic stress, and

severe back pains.”

The third incident at the CJC occurred on October 3, 2020, when plaintiff was put “in the

restraint chair…in frigid air with nothing on.” Plaintiff explains that he was placed in the chair for

something that happened on the previous day, during Lieutenant Fowlkes’s shift. He maintains

that Lieutenant Fowlkes “left the next shift to do his dirty work.” That “dirty work” consisted of

several individuals – not named as defendants – placing him in a restraint chair too tightly, so that

his “blood circulation” was cut off. Plaintiff was in the chair for fourteen hours “with 3 restroom

breaks [and] not one time to stretch [his] arms or legs.” (Docket No. 1 at 14-15).

At some unspecified point, plaintiff states that Lieutenant Fowlkes, Lieutenant Hoke, and

Officer Boatman “escorted [him] to [the] rec yard where it was frigid,” even though he was only

wearing a suicide gown and was barefoot. (Docket No. 1 at 15). Plaintiff also notes that he had

bruises around his wrist, chest, and ankles, and that his back hurt for days.

The fourth incident mentioned in the complaint took place at the MSI, where plaintiff was

transferred after contracting COVID-19. He states that the transfer occurred on either January 22

or January 28, 2021. (Docket No. 1 at 16). When plaintiff arrived at the MSI, he states that he was

treated inhumanely, made to strip off all of his clothes, and “to walk [barefoot] down a long frigid

hall.” (Docket No. 1 at 15).

Once in his cell, Lieutenant Archibald approached and told him to “cuff up.” When plaintiff

asked why he had to be handcuffed, Lieutenant Archibald became “hostile and loud.” She unlocked

his chuckhole, reached inside his cell, and deployed mace. Thereafter, plaintiff states that he was

“left in the cell to marinate in mace,” and that he was not given medical help or offered a shower.

(Docket No. 1 at 16). He further asserts that the water pressure in his cell was so low that he “could

not drink or rinse…for 14 days straight.”

A fifth incident occurred on February 2, 2021. This one also took place at MSI. According

to plaintiff, he was walking back from an attorney visit when he was sprayed with mace by

Lieutenant Thomas. When this happened, plaintiff was in “cuffs on [his] hand[s] and feet.” He

further asserts that Officer Lester began to mace him “constantly.” Plaintiff was then placed into

his “cell to marinate in mace with no medical help.”

With regard to Commissioner Glass, plaintiff states that “Glass was responsible for training

and supervising all officers and staff,” and also “sets jail policy.” Likewise, he states that

Superintendent Barnes “was responsible for training and supervising all correction officers,” as

well as setting jail policy. As to Superintendent Carson and Deputy Commissioner Hayes, plaintiff

contends that Carson and Hayes are responsible for training and supervising MSI correctional

officers, and for setting jail policy. (Docket No. 1 at 17).

Plaintiff states that the aforementioned incidents constitute excessive uses of force that

were not “rationally related to a legitimate governmental purpose.” He seeks compensatory

damages as deemed “just and appropriate” by the Court.

Discussion

Plaintiff is a self-represented litigant who brings this civil action pursuant to 42 U.S.C. §

1983, alleging excessive force while he was a pretrial detainee at the CJC and MSI. Because he is

proceeding in forma pauperis, the Court has reviewed his complaint under 28 U.S.C. § 1915. Based

on that review, and for the reasons discussed below, the Court will direct plaintiff to file an

amended complaint.

A. Deficiencies in Complaint

Plaintiff’s complaint is deficient for three separate reasons. First, as to the official capacity

claims against defendants Glass, Barnes, Hayes, and Carson, plaintiff has presented no facts to

support the proposition that the City of St. Louis is liable to him due to an unconstitutional policy,

custom, or failure to train. Instead of providing supporting factual allegations, plaintiff merely

recites the cause of action, which is insufficient. See Hamilton v. Palm, 621 F.3d 816, 817-18 (8th

Cir. 2010) (explaining that to state a cause of action, “[a] pleading that merely pleads labels and

conclusions, or a formulaic recitation of the elements of a cause of action, or naked assertions

devoid of factual enhancement will not suffice”).

Second, plaintiff treats several of the defendants – especially Officers Allen, Powell,

Hopgood, Tillery, Boatman, and Robinson – as an undifferentiated group, rather than make

specific allegations about what each individual actually did or failed to do to harm him. This is not

sufficient to state a 42 U.S.C. § 1983 claim, as individuals “are personally liable only for their own

misconduct.” See S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015).

Finally, plaintiff’s complaint advances numerous claims against multiple defendants

occurring at two separate institutions. 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). While joinder of claims, parties, and remedies are encouraged under the

Federal Rules of Civil Procedure, permissive joinder is not applicable in all cases. Mosely v.

General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974). In particular, there are two specific

requisites for joinder, including the requirement that the asserted right to relief against each

defendant must arise out of the same transaction or occurrence. Id. 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).

In this case, plaintiff appears to be attempting to bring five separate use-of-force claims

involving the deployment of mace against him. Of the five separate incidents described in the

complaint, only two of them involve the same defendants. More precisely, Lieutenant Fowlkes

and Officer Boatman were allegedly involved in the second and third incidents, occurring on

September 29, 2020 and October 3, 2020, respectively. The other three incidents involved entirely

separate defendants. Furthermore, three of the incidents occurred at the CJC, while two took place

at the MSI. Other than the fact that mace was used, plaintiff has not demonstrated that these

incidents, occurring over the course of ten months at two separate jails, constitute a single

transaction or occurrence.

Despite the deficiencies in plaintiff’s complaint, the Court will not dismiss it at this time.

Instead, because plaintiff is a self-represented litigant, and because he has raised serious

allegations, he will be allowed to file an amended complaint according to the instructions set forth

below. These instructions must be followed.

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, and ensure that it is

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 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). As noted above, plaintiff complains about five separate

incidents occurring over a ten month period involving sixteen different defendants and two

separate institutions. This is not permitted, and the Court will not allow plaintiff to simply bring

every claim he has in a single lawsuit, without showing that the right to relief asserted against

defendants arise out of the same transaction or occurrence. 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).

The Court notes that in his original complaint, plaintiff mentioned several defendants

without specifying their exact roles. 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 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. 3). 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. As discussed above, plaintiff is being ordered to file an amended complaint.

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

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $26.36

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 (Docket

No. 3) 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 an amended complaint on the Court-

provided form in accordance with the instructions set forth above within thirty (30) days of the

date of this order.

IT IS FURTHER ORDERED that if plaintiff fails to file an amended complaint on the

Court-provided form in accordance with the instructions set forth above within thirty (30) days

of the date of this order, the Court will dismiss this action without prejudice and without further

notice.

IT IS FURTHER ORDERED that upon the filing of plaintiff's amended complaint, the

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

Dated this 29" day of October, 2021.

Solo fou

JOHN As

UNITED STATES DISTRICT JUDGE

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