Winters v. Greenwell

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

MICHAEL A. WINTERS, )

)

Plaintiff, )

)

v. ) No. 1:21-cv-00116-HEA

)

TOMMY GREENWELL, et al., )

)

Defendants. )

OPINION, MEMORANDUM AND ORDER

This matter comes before the Court on review of plaintiff Michael A. Winters’s amended

complaint pursuant to 28 U.S.C. § 1915. Based on that review, the Court has determined that

plaintiff’s amended complaint is deficient and subject to dismissal. However, plaintiff will be

given an opportunity to file a second amended complaint according to the instructions set forth in

this order.

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).

Background

Plaintiff is a self-represented litigant who is currently incarcerated at the Farmington

Correctional Center in Farmington, Missouri. On August 16, 2021, he filed a civil action pursuant

to 42 U.S.C. § 1983, alleging various constitutional violations while he was an inmate at the

Pemiscot County Jail in Caruthersville. (Docket No. 1). In the complaint, plaintiff named Sheriff

Tommy Greenwell, Assistant Jail Administrator Torrence Akins, Nurse Kristy Tate, Prosecutor

Jeremy Lytle, Public Defender Edwin Ketcham, and Prosecutor Josh Tomlin as defendants. He

did not indicate the capacity in which Prosecutor Tomlin was sued. All other defendants were sued

in their official capacities only. The complaint contained a number of different allegations

regarding incidents that occurred between 2016 and 2021.

Along with the complaint, plaintiff filed a motion for leave to proceed in forma pauperis.

(Docket No. 2). On January 12, 2022, the Court granted the motion and assessed an initial partial

filing fee. (Docket No. 6). Because plaintiff was proceeding in forma pauperis, the Court reviewed

his complaint under 28 U.S.C. § 1915. Based on that review, the Court determined that plaintiff’s

complaint was subject to dismissal. First, defendants were sued in their official capacities only,

but plaintiff had failed to state an official capacity claim. Second, the Court noted that plaintiff had

improperly joined numerous claims into a single lawsuit, asserting allegations over the course of

five different years, with different operative facts.

Instead of dismissing the complaint, the Court gave plaintiff the opportunity to file an

amended complaint, and included instructions on how to do so. On January 31, 2022, the Court

received plaintiff’s amended complaint. (Docket No. 7).

The Amended Complaint

Plaintiff’s amended complaint is brought pursuant to 42 U.S.C. § 1983, and names Sheriff

Tommy Greenwell, Jail Administrator Torrence Akins, Nurse Kristy Tate, and Prosecutor Jeremy

Lytle as defendants. (Docket No. 7 at 2, 4, 6). All defendants are sued in both their official and

individual capacities. Plaintiff’s allegations encompass various conditions of confinement at the

Pemiscot County Jail from May 2020 to May 2021.

With regard to Jail Administrator Akins, plaintiff states that Akins ignored grievances,

failed to separate him from violent offenders who “attacked and [assaulted]” him, put him into

prolonged lockdowns, used mace and a taser on him “on many [occasions],” used his “influence”

on other offenders to have them assault and beat him, and failed to place him into protective

custody. (Docket No. 7 at 3). During his year at the Pemiscot County Jail, he asserts that he was

assaulted ten times, receiving injuries including black eyes, a swollen face, and having his “teeth

knocked out.” According to plaintiff, Akins also told Nurse Tate “not to provide medical

attention.” (Docket No. 7 at 8).

As to Nurse Tate, plaintiff states that he wrote grievances to Tate “complaining about high

[cholesterol] and high blood sugar, mental health, [and] injuries sustained by assaults by other

inmates.” (Docket No. 7 at 3). He claims that “[e]ach and every day [he] would ask for medication,

or to see a doctor.” Nevertheless, plaintiff states that Nurse Tate “never did anything to help ensure

that” he received medical or mental health treatment, or “even help for tooth pain” and injuries he

sustained from other inmates. He further accuses Nurse Tate of denying the medication he took in

prison, and of keeping him from receiving insulin, “mental health meds,” and cholesterol

medications. (Docket No. 7 at 7).

Concerning Sheriff Greenwell, plaintiff states that under Greenwell’s “watch at the

Pemiscot County Jail,” he was aware that plaintiff “was being abused, [assaulted] and denied

medical treatment at the jail.” (Docket No. 1 at 4). He asserts that Sheriff Greenwell failed “to

adhere to standard operating procedure and failed as a public servant of Pemiscot County Jail

policy.” Despite writing grievances and having “family and friends call him,” Sheriff Greenwell

allegedly “never did anything.”

With respect to Prosecutor Lytle, plaintiff states that he “wrote many letters” to Lytle

“asking him to either bring [his] case before court or let [him] get a bail bond.” (Docket No. 7 at

6). He asserts that Prosecutor Lytle failed to timely prosecute his case, and failed to prosecute the

inmates who knocked out his front teeth.

Plaintiff further states that “Pemiscot County officials and municipal agents knew about

what was going on behind close[d] doors at the jail.” (Docket No. 7 at 7). He asserts that these

unidentified individuals “deliberately turned a blind eye to complaints from the community and

letters from family and inmates themselves.” Plaintiff refers to an audit conducted “in 2019 or

2020” that “gave Pemiscot County a fair grade, and advised the sheriff, the clerk, the prosecutor

and other agents of the county to upgrade or to change the way they were doing things,” though

he does not specify what that means.

As a result of these incidents, plaintiff states that he was denied medications, denied

medical treatment, that excessive force was used against him, that his civil rights were purposely

violated, that he was denied protective custody, and that his case was not timely prosecuted.

(Docket No. 7 at 7-8). He seeks $2 million in actual damages and $2 million in punitive damages.

(Docket No. 7 at 9).

Discussion

Plaintiff’s amended complaint is brought pursuant to 42 U.S.C. § 1983, and alleges a

variety of different constitutional violations by different defendants over the course of a year in

the Pemiscot County Jail. Because plaintiff is proceeding in forma pauperis, the Court has

reviewed his amended complaint under 28 U.S.C. § 1915. Based on that review, the Court has

determined that the amended complaint is still deficient and subject to dismissal. However, the

Court will give plaintiff another opportunity to cure these defects by filing a second amended

complaint.

A. Deficiencies in Amended Complaint

Plaintiff’s amended complaint is deficient and subject to dismissal for three reasons. First,

he has not sufficiently alleged official capacity claims against any of the defendants. 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, Sheriff Greenwell, Jail Administrator Akins, and Prosecutor Lytle are alleged

to be employed by Pemiscot County. Thus, the official capacity claims against them are claims

against the county itself, their employer. However, plaintiff has not demonstrated the liability of

Pemiscot County by demonstrating that he was harmed due to an unconstitutional policy, custom,

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

municipal 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”).

With regard to Nurse Tate, she is alleged to be employed by Corizon. To state an official

capacity claim against Corizon, plaintiff “must show that there was a policy, custom, or official

action that inflicted an actionable injury.” See Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir.

2006). He has not done this.

Second, plaintiff’s individual capacity claims are deficient. Individual liability under 42

U.S.C. § 1983 requires a plaintiff to demonstrate “a causal link to, and direct responsibility for,

the deprivation of rights.” See Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006). Plaintiff

has not done this. Instead, for each defendant, he simply asserts a laundry list of causes of action,

without any supporting facts to show that his constitutional rights were violated. For example, with

regard to Jail Administrator Akins, plaintiff states that Akins used a mace and taser on him, but

never provides any context for these actions. That is, he provides no facts as to when this occurred

or why this occurred, making it impossible for the Court to know whether Akins was using force

as punishment, or whether he was using force for some legitimate reason, such as to maintain

discipline. Similarly, with regard to Nurse Tate, he alleges that he did not receive certain

medications, but never states what the medications were for, and why he needed them. In short,

plaintiff’s allegations are comprised almost entirely of conclusions or unsupported statements. The

Court “need not accept as true a plaintiff’s conclusory allegations or legal conclusions drawn from

the facts.” See Glick v. Western Power Sports, Inc., 944 F.3d 714, 717 (8th Cir. 2019).

Finally, plaintiff has once again improperly joined claims that do not arise out of the same

transaction or occurrence. Rule 20 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). Under this rule, a plaintiff cannot join, in a single lawsuit, a multitude of

claims against different defendants that are related to events arising out of different occurrences or

transactions. In other words: “Claim A against Defendant 1 should not be joined with unrelated

Claim B against Defendant 2.” See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). “Unrelated

claims against different defendants belong in different suits . . . [in part] to ensure that prisoners

pay the required filing fees – for the Prison Litigation Reform Act limits to 3 the number of

frivolous suits or appeals that any prisoner may file without prepayment of the required fees.” Id.

In its prior order, the Court specifically advised plaintiff that his claims must be related to

each other. Instead of following this directive, plaintiff’s amended complaint contains an entire

year’s worth of accusations, encompassing unrelated causes of action. For instance, he accuses Jail

Administrator Akins of excessive force and failure to protect, while alleging that Nurse Tate failed

to provide certain medications and did not properly respond to his request for dental care. The

Federal Rules of Civil Procedure do not allow plaintiff to simply bring every claim he has in a

single amended complaint.

Because plaintiff is a self-represented litigant, the Court will once again give him the

opportunity to cure these deficiencies by filing a second amended complaint according to the

instructions set forth below. Plaintiff should read these instructions carefully. He must follow these

instructions in preparing his second amended complaint.

B. Amendment Instructions

Plaintiff should type or print his second 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 second

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.

In the section of the complaint for listing the parties plaintiff should, to the best of his

abilities, provide the information that is requested, such as employer and address. 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.

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).

As noted above, plaintiff’s amended complaint contains numerous unrelated claims. By

way of example, he has accused one defendant of excessive force and failure to protect, and another

defendant of failing to give him certain medications and healthcare. All told, plaintiff’s amended

complaint encompasses an entire year, asserting numerous different incidents occurring at

different times. The second 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). If plaintiff insists on suing multiple defendants,

the claims against the defendants must be related. For instance, plaintiff cannot sue Jail

Administrator Akins for excessive force and failure to protect, while also suing Nurse Tate for

failing to give him his medications, unless plaintiff clearly shows that those claims have some

relation to each other. If plaintiff has unrelated claims, he must file them in a separate lawsuit.

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). For example, if plaintiff wishes to sue Jail

Administrator Akins alone, he may set forth as many claims as he has against him.

In structuring his second 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.

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”).

The Court notes that plaintiff’s allegations against the defendants in the amended complaint

consist mainly of labels and conclusions, which is not sufficient. See Neubauer v. FedEx Corp.,

849 F.3d 400, 404 (8th Cir. 2017) (“A pleading that offers labels and conclusions or a formulaic

recitation of the elements of a cause of action will not do”). For example, with regard to Jail

Administrator Akins, plaintiff merely lists all the things that Akins has allegedly done to him,

without providing any factual support. Plaintiff needs to provide facts to support the cause of

action that he is asserting. If he is accusing Akins of excessive force, for instance, he must explain

when the event occurred, and what exactly happened, in order to demonstrate that a violation of

his constitutional rights occurred.

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 a second amended complaint completely replaces the

original complaint. This means that claims that are not re-alleged in the second 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 second 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 a second 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.

Accordingly,

IT IS HEREBY 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 a second 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 a second 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 plaintiffs second amended complaint,

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

Dated this 2™ day of February, 2022.

HENRY EDWARD Lo

UNITED STATES DISTRICT JUDGE

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