Robinson v. Unknown

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

CHRISTOPHER L. ROBINSON, )

Plaintiff,

V. No. 1:21-cv-00155-SNLJ

STEPHANIE UNKNOWN, et al.,

Defendants.

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Christopher L. Robinson 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 $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. /d.

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

1915(a)(2), instead providing the Court with a printout titled “account summary.” (Docket No. 3).

Nevertheless, having reviewed the information contained in the motion and the account summary,

the Court will order plaintiff to pay an initial partial filing fee of $1.00. See Henderson v. Norris,

129 F.3d 481, 484 (8" 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 inmate 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.” Jd. 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. /d. 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 (8" Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73

(8"" 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 (8" 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 (8"" Cir. 1980). See also Stone v. Harry, 364 F.3d

912, 914-15 (8 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 Eastern Reception,

Diagnostic and Correctional Center in Bonne Terre, Missouri. He brings this civil action pursuant

to 42 U.S.C. § 1983, naming Nurse Stephanie Unknown, COII Mike McMeans, Jail Administrator

Mike Jones, Dr. John Montgomery, and the Butler County Justice Center as defendants. (Docket

No. 1 at 2-4). Nurse Stephanie, COI] McMeans, and Dr. Montgomery are sued in both their official

and individual capacities, while Jail Administrator Jones is sued in his individual capacity only.

The complaint concerns the alleged deliberate indifference to plaintiff's medical needs while he

was an inmate at the Butler County Justice Center.

In his “Statement of Claim,” plaintiff asserts that he was booked into the Butler County

Justice Center on June 28, 2020. (Docket No. 1 at 5). At the time, he advised the booking officer

that he was “HIV positive.”

On June 29, 2020, plaintiff states that he “walked up to the intercom in the wing and told

the officers in the control room that [he] wanted to self-declare because [he] was bleeding” from

two holes in his legs the size of half-dollars. In response, plaintiff “was told to take a shower and

to cover the sores with toilet paper.”

On July 2, 2020, plaintiff “put in a medical request form to the nurse asking if [he] could

[be] seen by the nurse or the doctor about [his] HIV and possibly be put on the phone with the

health [department].” Plaintiff asserts that he did not receive a response from the request form.

On July 18, 2020, plaintiff states that he ““was having problems with infections all over

[his] chest, back and face that [were] bleeding” and emitting pus. He also “had thrush in [his]

mouth and [esophagus],” a “yeast infection in [his esophagus],” “swollen and bleeding” gums, and

“black floaties” in his “right eye.” According to plaintiff, the “nurse put [him] in to see the doctor,”

and proscribed mouthwash and non-prescription eyedrops. (Docket No. 1 at 5-6). For the sores on

his neck, face, back and chest, the nurse gave him “a handful of band-aides.” (Docket No. | at 6).

Plaintiff complains that he was charged $15 to see the doctor, and $5 for each of the items he was

given.

On either July 25 or July 26, 2020, plaintiff was told by the nurse that he was going to see

a representative from the Butler County Health Department. During this “whole time,” he asserts

that he was “telling the nurse that [he was] losing sight in [his] right eye,” but the nurse just kept

“charging [him] more money for medications without seeing a doctor.” Plaintiff contends that

having to pay for his healthcare makes it impossible for him to purchase soap and other items to

keep himself clean, and that he only got a single pair of clothes, which he bled over, requiring him

to walk “around in bloody uniforms with all kinds of infections.” (Docket No. 1 at 6-7).

On August 15, 2020, plaintiff “could no longer see out of [his] right eye,” and was

experiencing a burning, itching sensation. (Docket No. | at 7). He was seen by Dr. Montgomery,

who asked him if he “was allergic to any medications.” Plaintiff advised Dr. Montgomery that he

had suffered an allergic reaction to Bactrim that required a trip to the hospital. Dr. Montgomery

put plaintiff on an antibiotic for his thrush, sores, and yeast infection. Despite knowing about

plaintiffs allergy, plaintiff alleges that Dr. Montgomery prescribed him Bactrim anyway. Plaintiff

later had an allergic reaction to the Bactrim that required a trip to the emergency room.

On August 22, 2020, plaintiff was seen by a representative of the Butler County Health

Department. (Docket No. | at 8). He received blood test results that showed he had syphilis,

Hepatitis C, and “full blown AIDS.” When his public defender sought a medical bond “due to the

jail letting [his] health deteriorate,” the nurse “told the judge that they had it under control.”

In October 2020, plaintiff states that Nurse Stephanie told him that he “had gotten rid of

[his syphilis].” (Docket No. | at 9). Just under a year later, however, he was informed by a prison

nurse that he still had syphilis, requiring shots of penicillin.

Lastly, on November 3, 2020, plaintiff was taken to a doctor for an eye examination, and

was prescribed prednisone and atropine drops. (Docket No. | at 8). He was also scheduled for a

follow-up in two weeks, but alleges that he was never taken back to the eye doctor. Plaintiff states

that he is “still blind in [his] right eye.”

Based on this alleged lack of proper medical care, plaintiff states that he is “now blind in

[his] right eye,” and that he is in pain every time he urinates due to the syphilis “that the jail did

not treat [and that] they lied to [him and] told [him he] got rid of it.” (Docket No. 1 at 13). He also

asserts that he has severe scarring on his face, back, and chest. As a result, he seeks $1.5 million

in damages, and for all his medical expenses to be paid. (Docket No. 1 at 14).

Discussion

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

1983, alleging that defendants were deliberately indifferent to his medical needs. 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 has determined that his complaint

is deficient and subject to dismissal. However, the Court will give plaintiff an opportunity to file

an amended complaint.

A. Deficiencies in Complaint

Plaintiff's complaint is deficient and subject to dismissal for four reasons. First, his claim

against the Butler County Justice Center fails, because a county jail is not a suable entity. See

Owens v. Scott Cty. Jail, 328 F.3d 1026, 1027 (8" Cir. 2003) (explaining that “county jails are not

legal entities amenable to suit’).

Second, plaintiff has not adequately stated official capacity claims against Nurse Stephanie,

COII McMeans, and Dr. Montgomery. In an official capacity claim against an individual, the claim

is actually against the governmental employer. See Johnson v. Outboard Marine Corp., 172 F.3d

531, 535 (8" Cir. 1999) (explaining that a “suit against a public employee in his or her official

capacity is merely a suit against the public employer’). As these defendants are alleged to be

employed by the Butler County Justice Center, the official capacity claims against them are

actually claims against Butler County itself, their employer. However, plaintiff has not stated a

municipal liability claim against the county. See Marsh v. Phelps Cty., 902 F.3d 745, 751 (8" Cir.

2018) (recognizing municipal liability “claims challenging an unconstitutional policy or custom,

or those based on a theory of inadequate training, which is an extension of the same”).

Third, with regard to the individual capacity claims against COI] McMeans and Jail

Administrator Jones, plaintiff does not mention either McMeans or Jones in the “Statement of

Claim.” Without any factual allegations, plaintiff obviously cannot state a claim sufficient for

purposes of initial review. The Court notes that elsewhere in the complaint, plaintiff mentions that

defendants McMeans and Jones did not respond to his grievances. This does not state a

constitutional violation, however, as a grievance procedure does not confer a substantive right. See

Lomholt v. Holder, 287 F.3d 683, 684 (8" Cir. 2002) (agreeing with district court that “defendants’

denial of [plaintiffs] grievances did not state a substantive constitutional claim”).

Finally, plaintiff has likewise failed to state individual capacity claims against Nurse

Stephanie and Dr. Montgomery. To the extent that plaintiff specifically mentions these defendants

in the “Statement of Claim,” he accuses them of not treating his medical issues in the way he

desired, and of committing malpractice by prescribing an antibiotic to which he was allergic, and

telling him that he no longer had syphilis, even though he claims he did. To prevail on an Eighth

Amendment claim of deliberate indifference, a plaintiff must prove that he suffered from an

objectively serious medical need, and that prison officials actually knew of and disregarded that

need. Roberts v. Kopel, 917 F.3d 1039, 1042 (8" Cir. 2019). A showing of deliberate indifference

requires more than a mere disagreement with treatment decisions and is greater than gross

negligence. Gibson v. Weber, 433 F.3d 642, 646 (8 Cir. 2006). See also Cejvanovic v. Ludwick,

923 F.3d 503, 507 (8% Cir. 2019) (stating that a “mere disagreement with treatment

decisions...does not rise to the level of a constitutional violation”); and Kulkay v. Roy, 847 F.3d

637, 643 (8"" Cir. 2017) (stating that mere negligence or inadvertence does not rise to the level of

deliberate indifference).

Because plaintiff is a self-represented litigant, he will be given the opportunity to cure these

deficiencies by filing 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, as he did in the original complaint. However, all the defendants must be clearly

listed.

Plaintiff should fill out the complaint form in its entirety, and ensure that it is signed.

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 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. For

example, if plaintiff is suing Dr. Montgomery, he should write Dr. Montgomery’s name. Below

the name, plaintiff should provide factual allegations indicating what Dr. Montgomery allegedly

did or did not do to harm him.

Relatedly, 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 (8" 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 (gt Cir.

2017). This means that plaintiff must make specific allegations against each of the defendants he

has named in his complaint.

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 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 (8'" 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

(8"" 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. 4). 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 (8 Cir. 2013). See also Stevens v. Redwing, 146 F.3d 538, 546 (8" 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.”

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Patterson vy. Kelley, 902 F.3d 845, 850 (8" 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 (8" Cir. 2006).

After reviewing these factors, the Court finds that the appointment of counsel is not

warranted at this time. As discussed above, plaintiff's complaint is deficient, and he has been

ordered to submit 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.

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 plaintiffs motion for appointment of counsel (Docket

No. 4) 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.

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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<S%fiay of -femanacry , 2022.

SENIOR UNITED STATES DISTRICT JUDGE

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