Ramsey v. Precythe

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

SEAN NICHOLAS RAMSEY, )

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Plaintiff, )

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v. ) No. 4:21 CV 930 MTS

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ANNE L. PRECYTHE, et al., )

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Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Sean Nicholas Ramsey for

leave to commence this civil action without prepayment of the required filing fee. Doc. [2]. Having

reviewed the motion, the Court has determined that plaintiff lacks sufficient funds to pay the entire

filing fee, and will assess an initial partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1).

Additionally, for the reasons discussed below, the Court will order plaintiff to file 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

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.

Plaintiff has not submitted a prison account statement as required by 28 U.S.C. §

1915(a)(2). Nevertheless, having reviewed the information contained in the motion, the Court will

require plaintiff to pay an initial partial filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481,

484 (8th Cir. 1997) (explaining that when a prisoner is unable to provide the court with a certified

copy of his inmate account statement, the court should assess an amount “that is reasonable, based

on whatever information the court has about the prisoner’s finances”). If plaintiff is unable to pay

the initial partial filing fee, he must submit a copy of his prison account statement in support of his

claim.

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 28 U.S.C. § 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 incarcerated at the Potosi

Correctional Center in Mineral Point, Missouri. He brings this civil action pursuant to 42 U.S.C.

§ 1983, naming Anne L. Precythe, Chaplain Thomas Reagan, Warden David Vandergriff, Case

Manager Vaugh, Case Manager Nicole Warden, Deputy Warden Lorna Black, and DIA Jeff

Norman as defendants. Doc. [1 at 1]. Defendants Reagan and Vandergriff are sued in both their

individual and official capacities. Doc. [1 at 2-3]. Plaintiff does not indicate the capacities in which

the remaining defendants are sued. His allegations concern the alleged denial of his First

Amendment right to practice his religion while he was at the Eastern Reception, Diagnostic and

Correctional Center (ERDCC).

In the “Statement of Claim,” plaintiff asserts that he contacted the mail room about

receiving a copy of “Prose Edda,” which is apparently an Odinist religious text. Doc. [1 at 4]. He

claims he “was met with the response stating” that he was “not allowed” to have books – including

religious texts – mailed to him while he was “in ERDCC Diagnostics.” Plaintiff was then referred

to Chaplain Reagan.

With regard to Chaplain Reagan, plaintiff states that he wrote Reagan about providing him

a copy of “Prose Edda for [his] religious beliefs.” He also inquired as to why his face sheet showed

his “religion as Christian,” when he is actually an “Odinist.” According to plaintiff, Chaplain

Reagan advised him “that they could only provide Bibles and Korans for inmates,” and that he

was “not allowed to have [his] Prose Edda sent in while in ERDCC Diagnostics.” Plaintiff

allegedly “stated” to Chaplain Reagan that he felt as if he were being discriminated against based

on his beliefs.

The Court notes that in a supplement to the complaint, plaintiff provides the letter from

Chaplain Reagan. Doc. [4 at 7]. Contrary to what plaintiff has alleged, the letter from Chaplain

Reagan states that plaintiff is allowed to have the book “Prose Edda” in his possession. However,

he explains that “[t]he Chapel is only allowed to hand out books that are donated to the Chapel,”

and that they can provide Bibles and Korans because they have been donated. Chaplain Reagan

advises plaintiff that if he knows a source or contact who would donate books for Odinists, the

Chapel “would be happy to receive that donation.” In addition, Chaplain Reagan specifically tells

plaintiff – in contravention of plaintiff’s allegations – that he can order the book and have it shipped

to him, and that as long as he follows “the rules of having it shipped, [plaintiff] can have it.”

As to Case Worker Vaugh, plaintiff states that he asked Vaugh for an informal resolution

request (IRR) based on the denial of his religion and spiritual growth. Doc. [1 at 5]. Case Worker

Vaugh allegedly told plaintiff that he “should pick a different [religion],” and failed to provide him

an IRR. Likewise, Case Worker Warden also failed to provide him an IRR, and told him that he

“was not allowed to have books mailed in while in ERDCC Diagnostics.”

Concerning Deputy Warden Black, plaintiff asserts that he wrote Black a “kite”1 in May

2021 about not being allowed his religious material and not being allowed to fill out an IRR.

According to plaintiff, he received no response. Similarly, plaintiff states that he wrote Warden

Vandergriff a kite about not being allowed a copy of “Prose Edda” and about his case workers

refusing to provide him with an IRR. Doc. [1 at 6]. He does not explain what happened after he

sent the kite to Warden Vandergriff.

Regarding defendants Precythe and Norman, plaintiff provides no allegations in the

complaint.

Plaintiff lists no injuries as a result of the alleged violation of his constitutional rights, but

seeks to “[c]hange policy so that all authorized [religions] be allowed their” religious literature at

the ERDCC. Doc. [1 at 8]. He further requests actual damages of $100 a day and punitive damages

of $250 a day.

Discussion

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

1983, alleging that defendants violated his First Amendment right to practice his religion. Because

plaintiff is proceeding in forma pauperis, the Court reviewed his complaint under 28 U.S.C. §

1915. Based on that review, and for the reasons discussed below, the Court has determined that

1“Kite” is a slang word for a written message or request sent by prisoners.

plaintiff’s complaint is subject to dismissal. However, he will be given the opportunity to file an

amended complaint.

A. Deficiencies in Complaint

Plaintiff’s complaint is subject to dismissal for several reasons. First, with regard to the

official capacity claims, such claims are treated as being made against defendants’ employer. See

Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (explaining that a “suit

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

employer”). In this case, defendants are alleged to be employed by the State of Missouri, meaning

the official capacity claims are actually against the state itself. To the extent that plaintiff is seeking

money damages, the official capacity claims fail, because the State of Missouri is not a 42 U.S.C.

§ 1983 “person,” and because the claims are barred by the Eleventh Amendment. See Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (explaining that “neither a State nor its

officials acting in their official capacity are ‘persons’ under § 1983”); and Andrus ex rel. Andrus

v. Arkansas, 197 F.3d 953, 955 (8th Cir. 1999) (“A claim for damages against a state employee in

his official capacity is barred under the Eleventh Amendment”).

To the extent that plaintiff is seeking prospective injunctive relief, he is required to

demonstrate the State of Missouri’s liability by showing the existence of an unconstitutional

policy, custom, or failure to train. See Mick v. Raines, 883 F.3d 1075, 1079 (8th Cir. 2018). While

plaintiff mentions a “policy” in his complaint, he has not presented sufficient facts establishing the

contents of this policy, or that his inability to receive a copy of “Prose Edda” resulted from “a

deliberate choice of a guiding principle or procedure made by the [government] official who has

final authority regarding such matters.” See Corwin v. City of Independence, Mo., 829 F.3d 695,

700 (8th Cir. 2016).

As to defendants Vaugh, Warden, and Black, plaintiff has not indicated the capacity in

which they are sued. When a complaint is silent as to the capacity in which a defendant is sued,

the complaint is interpreted as containing only official capacity claims. See Baker v. Chisom, 501

F.3d 920, 923 (8th Cir. 2007). Official capacity claims are treated as being made against

defendants’ employer, which in this case is the State of Missouri. As previously explained,

however, plaintiff has not adequately asserted a claim against the state.

Regarding defendants Precythe and Norman, there are no allegations against them

whatsoever. That is, aside from being named in the case caption, they do not appear anywhere else

in the complaint. Simply placing a defendant’s name in the caption is not enough to assert their

responsibility. See Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993) (agreeing with district court

dismissal of two defendants who were named as defendants in the complaint, but who had no

factual allegations made against them).

Finally, regarding the individual capacity claims against defendants Reagan and

Vandergriff, plaintiff has not drawn a connection between their actions and the violation of a

constitutional right. See Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006) (stating that 42

U.S.C. § 1983 liability “requires a causal link to, and direct responsibility for, the deprivation of

rights”). As to Warden Vandergriff, plaintiff asserts only that he sent Vandergriff a kite. He

presents no further allegations establishing that Vandergriff received the kite, that the kite

adequately put him on notice that plaintiff’s rights were being violated, and that he did nothing in

response. As to Chaplain Reagan, plaintiff states that he asked questions of Reagan, to which

Reagan replied, but presents no facts asserting that Reagan was personally responsible for

preventing plaintiff from receiving a copy of “Prose Edda.”

For all these reasons, plaintiff’s complaint is deficient and subject to dismissal. Because

plaintiff is a self-represented litigant, the Court will give him the opportunity to submit an amended

complaint according to the instructions set forth below. Plaintiff must follow these instructions in

preparing his amended complaint.

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 must also indicate the capacity in which he is suing each defendant. The

complaint form should be filled out in its entirety, and plaintiff must 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). 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.

The Court notes that plaintiff is attempting to bring a First Amendment claim, arguing that

his inability to receive a copy of “Prose Edda” violated his right to practice his religion. To bring

a claim under the Free Exercise Clause, plaintiff must first raise a question of fact regarding

whether the prison has placed a substantial burden on his ability to practice his religion. Patel v.

U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008). “To constitute a substantial burden, the

government policy or actions must significantly inhibit or constrain conduct or expression that

manifests some central tenet of a person’s individual religious beliefs; must meaningfully curtail

a person’s ability to express adherence to his or her faith; or must deny a person reasonable

opportunities to engage in those activities that are fundamental to a person’s religion.” Murphy v.

Missouri Dep’t of Corrs., 372 F.3d 979, 988 (8th Cir. 2004). In short, plaintiff must present some

facts establishing that the failure to provide him with a copy of “Prose Edda” substantially

burdened his ability to practice his religion. For example, plaintiff should explain the purpose of

the “Prose Edda” to his religion, why it is necessary for him to practice his faith, how long he was

deprived of the book, and who specifically prevented him from receiving it.

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”).

Moreover, if there are no allegations against a particular defendant, that defendant will be

dismissed from the action.

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. 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. Doc. [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, the Court has determined that plaintiff’s complaint is

subject to dismissal, and has ordered him to file an amended complaint. 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. [2] is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $1.00

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.

[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 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 an amended complaint on the

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

instructions set forth above, the Court shall dismiss this case without prejudice and without further

notice.

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

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

Dated this 4th day of January, 2022. _

(ul ce

UNITED STATES DISTRICT JUDGE

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