Wallace v. Upton

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ROBERT E. WALLACE, JR., )

)

Plaintiff, )

)

v. ) No. 4:21-CV-01099-JAR

)

ALEX DOWNEY, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Robert E. Wallace, Jr. for

leave to commence this civil action without prepayment of the required filing fee. (Docket No. 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 direct 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 has brought a civil action construed as arising

under 42 U.S.C. § 1983, naming Correctional Officers Alex Downey and Caelan Upton as

defendants. (Docket No. 1 at 2-3). Plaintiff does not indicate the capacity in which defendants are

sued. The complaint contains allegations regarding two separate incidents of excessive force.

In the “Statement of Claim,” plaintiff asserts that on June 19, 2021, Officer Downey “used

excessive force” by slamming plaintiff’s face against the wall and floor, chipping his tooth.

(Docket No. 1 at 6). On June 27, 2021, plaintiff alleges that Officer Upton engaged in the

“excessive use of force” by slamming his hand in the food port, causing minor bleeding and

lacerations on his right forearm. Based on these incidents, plaintiff seeks unspecified “punitive

monetary damages” and unspecified “injunctive relief.”

Discussion

Plaintiff brings this civil action pursuant to 42 U.S.C. § 1983, accusing Officer Downey

and Officer Upton of using excessive force against him. Because plaintiff 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 has determined that his complaint is subject to dismissal.

Rather than dismissing outright, however, plaintiff will be given an opportunity to file an amended

complaint.

A. Deficiencies in Complaint

Plaintiff has not indicated the capacity in which he is suing Officer Downey and Officer

Upton. If a complaint is silent as to the capacity in which a defendant is sued, it is interpreted as

including official capacity claims only. See Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007). 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). Thus, 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).

In this case, defendants are alleged to be employed by the Missouri Department of

Corrections. As such, the official capacity claims against them are treated as being made against

the state itself, their employer. The claims fail for two reasons.

First, to the extent that plaintiff seeks money damages, the State of Missouri is not a 42

U.S.C. § 1983 “person.” See Kruger v. Nebraska, 820 F.3d 295, 301 (8th Cir. 2016) (explaining

that “a state is not a person for purposes of a claim for money damages under § 1983”).

Furthermore, “[a] claim for damages against a state employee in his official capacity is barred

under the Eleventh Amendment.” Andrus ex rel. Andrus v. Arkansas, 197 F.3d 953, 955 (8th Cir.

1999).

Second, to the extent that plaintiff seeks prospective injunctive relief, he has not

demonstrated the state’s liability for violating his constitutional rights. That is, he has not presented

facts regarding an unconstitutional State of Missouri policy, custom, or failure to train. See Marsh

v. Phelps Cty., 902 F.3d 745, 751 (8th Cir. 2018) (recognizing “claims challenging an

unconstitutional policy or custom, or those based on a theory of inadequate training, which is an

extension of the same”).

Even if the Court were to assume that plaintiff intended to sue Officers Downey and Upton

in their individual capacities, plaintiff has not sufficiently alleged excessive force. When a prison

official is accused of using excessive physical force in violation of the Eighth Amendment, the

core judicial inquiry is “whether force was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.” Jackson v. Gutzmer, 866 F.3d 969, 974

(8th Cir. 2017). See also Ward v. Smith, 844 F.3d 717, 721 (8th Cir. 2016) (“Because the use of

force is sometimes required in prison settings, guards are liable only if they are completely

unjustified in using force, i.e., they are using it maliciously and sadistically”). Here, however,

plaintiff has provided no facts demonstrating the context in which the force was used. In other

words, there are no facts showing that defendants were not acting to maintain or restore discipline,

leaving the Court to speculate as to what actually occurred.

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

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

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

his 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”). The Court notes

that plaintiff’s handwriting can be difficult to read. Thus, 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 prisoner civil rights 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).

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 if plaintiff intends to bring an excessive force claim under the Eighth

Amendment, he must present facts showing that the force deployed against him was done

sadistically or maliciously for the purpose of causing harm, rather than to maintain or restore

discipline.

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”).

The Court observes that plaintiff has brought two different excessive force claims

occurring at different times and involving different defendants. 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). If plaintiff has unrelated claims, he should file

them in a separate 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. 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 (30) 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, the Court is ordering plaintiff to file an amended

complaint, as his allegations are insufficient to state a claim. The Court will entertain a future

motion 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 $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 (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 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 in accordance with the instructions set forth above 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 amended complaint, the

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

Dated this Sth day of January, 2022.

/ f OHN A. ROSS

UNITED STATES DISTRICT JUDGE

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