Dortch v. Lewis

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ANTONIO DORTCH, )

)

Plaintiff, )

)

v. ) Case No. 4:21 CV 1160 MTS

)

UNKNOWN LEWIS, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Former inmate Antonio Dortch brings this action under 42 U.S.C. § 1983 for alleged

violations of his civil rights. The matter is now before the Court upon motion for leave to proceed

in forma pauperis, or without prepayment of the required filing fees and costs. Doc. [2]. Plaintiff

was an incarcerated state prisoner when he filed the complaint in this matter on September 24,

2021. However, on October 22, 2021, the Court received a change of address notice from plaintiff

indicating that he had been released from jail. Because plaintiff was released from confinement

shortly after filing the instant action, the Court will grant his request to proceed in forma pauperis

and will not assess an initial partial filing fee at this time. See 28 U.S.C. § 1915(a)(1). Furthermore,

after reviewing the complaint, the Court will dismiss this matter for failure to state a claim on

which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).

In Forma Pauperis Status and Payment of Filing Fee

Under 28 U.S.C. § 1915(b)(1), when a prisoner brings a civil action in forma pauperis, the

prisoner must pay the full amount of the filing fee, usually in the form of an initial partial payment

and then installment payments over time. However, a non-prisoner plaintiff can litigate without

payment of any fees if he qualifies under the general in forma pauperis provision of 28 U.S.C. §

1915(a)(1).

Reform Act] prison litigation provisions of § 1915 continue to govern if and after the prisoner is

released pendente lite (that is, during the litigation). The Fifth, Seventh and District of Columbia

Circuits have held that the full payment requirement is triggered upon the filing of the (as

applicable) complaint or notice of appeal. … The Second, Fourth, Sixth and Tenth Circuits have

concluded to the contrary, that the requirements of the PLRA do not continue to apply after the

plaintiff is released.” Putzer v. Attal, 2013 WL 4519351, at *1 (D. Nev. Aug. 23, 2013) (internal

citations omitted).

The Eighth Circuit has not ruled on this issue. However, in this case, plaintiff was released

shortly after filing this case and before the Court had ruled his motion for in forma pauperis status

and ordered an initial partial payment. Therefore, the Court will consider plaintiff as he currently

stands at the time of the review of his motion – as a non-prisoner plaintiff under 28 U.S.C. §

1915(a)(1). Based on the financial information submitted, the Court finds that plaintiff does not

have sufficient funds to pay the filing fee and will grant his motion.

The Complaint

Plaintiff, a former inmate at St. Louis County Detention Center, brings this action pursuant

to 42 U.S.C. § 1983 alleging violations of his civil rights. He names the following individuals as

defendants in this action: Unknown Burris (Director of Justice Services); Sergeant Lewis; Charles

McKnight; John Doe Correctional Officer; and Lieutenant Unknown Roland. Plaintiff sues

defendant Unknown Burris in both his individual and official capacities. He sues the remaining

defendants in their official capacities only.

Plaintiff asserts that when he was booked into St. Louis County Detention Center on

August 5, 2021, he was told by an unnamed officer to bend over and spread his buttocks so that he

could be searched. Doc. [1] at 3. Plaintiff states that on September 2, 2021, he told Director Burris

did not answer plaintiff’s statement and walked away. Id.

Plaintiff alleges that on September 2, 2021, he was told to move out of his bunk and sleep

on the floor of a cell. Id. Plaintiff does not indicate who told him to sleep on the floor of the cell,

and he does not state whether inmates were made to sleep on the floor because of overcrowding in

the Detention Center. He also does not state how long he was asked to sleep on the floor.

Plaintiff claims, however, that when he refused to sleep on the floor, he was placed in

disciplinary segregation for one day by defendant Unknown Lewis. Id. Plaintiff does not state if

the conditions in segregation were different than the conditions in general population. He alleges

that after he was released back to general population, he slept on the floor in several different cells

throughout St. Louis County Detention Center. Plaintiff complains that his back has been hurting,

and he complains that the lights in the cells in the Detention Center are on approximately twenty-

four hours per day. Id. at 3-5. He also complains that he suffers from lack of sleep, and that the

nurses in the Detention Center will only prescribe Ibuprofen and Tylenol for his aches and pains.

Id.

On September 5, 2021, plaintiff was purportedly told by an unnamed officer to strip and

bend at the waist and “spread his buttocks and cough.” Plaintiff alleges that this search was illegal.

Plaintiff does not provide facts detailing why he was searched on September 5, 2021.

Plaintiff asserts that he gave a grievance to defendant Unknown Roland on September 6,

2021. However, he never heard back relative to his grievance. Id. at 5. Plaintiff asserts that his due

process rights must have been violated regarding the grievance process as a result.

Plaintiff states that on September 9, 2021, defendant McKnight told him that the strip

searches he filed grievances for were not illegal. Id.

Plaintiff seeks monetary damages in this action.

Discussion

Plaintiff’s allegations regarding illegal strip searches of him by defendants at the St. Louis

County Detention Center fail to state a claim for relief as alleged. Additionally, plaintiff’s

allegations relating to his grievances do not rise to the level of a constitutional violation. Plaintiff’s

conditions of confinement claims also fail to state a claim for relief.

A. Official Capacity Claims Against Defendants

Plaintiff brings official capacity claims against all of the named defendants in this action.

Plaintiff’s official capacity claims against defendants are subject to dismissal. A suit brought

against a municipal official in his or her official capacity pursuant to § 1983 is not a suit against

the official, but rather a suit against the official’s employer. Will v. Michigan Dep’t of State Police,

491 U.S. 58, 71 (1989). In other words, the real party in interest in an official capacity suit is not

the named official, but the governmental entity. Hafer v. Melo, 502 U.S. 21, 25 (1991). See also

Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (“A suit against a public official in his

official capacity is actually a suit against the entity for which the official is an agent”).

Accordingly, a plaintiff suing a public employee in his or her official capacity “sues only the public

employer and therefore must establish the municipality’s liability for the alleged conduct.” Kelly

v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016).

Plaintiff alleges defendants are employees of the St. Louis County Detention Center. A

jail/detention center is not a suable entity under § 1983. See Owens v. Scott Cty. Jail, 328 F.3d

1026, 1027 (8th Cir. 2003); Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir.

1992); and De La Garza v. Kandiyohi Cty. Jail, 18 Fed. Appx. 436, 437 (8th Cir. 2001).

claim against St. Louis County, plaintiff must allege that a policy or custom is responsible for

violating his constitutional rights. Monell v. Dep't of Social Services, 436 U.S. 658, 690-91 (1978).

“Policy” refers to “official policy, a deliberate choice of a guiding principle or procedure

made by the municipal official who has final authority regarding such matters.” Corwin v. City of

Independence, Mo., 829 F.3d 695, 700 (8th Cir. 2016). See also Russell v. Hennepin Cty., 420 F.3d

841, 847 (8th Cir. 2005) (“A policy is a deliberate choice to follow a course of action made from

among various alternatives by the official or officials responsible . . . for establishing final policy

with respect to the subject matter in question”). For a policy that is unconstitutional on its face, a

plaintiff needs no other evidence than a statement of the policy and its exercise. Szabla v. City of

Brooklyn, Minn., 486 F.3d 385, 389 (8th Cir. 2007). However, when “a policy is constitutional on

its face, but it is asserted that a municipality should have done more to prevent constitutional

violations by its employees, a plaintiff must establish the existence of a ‘policy’ by demonstrating

that the inadequacies were a product of deliberate or conscious choice by the policymakers.” Id.

at 390.

Alternatively, a plaintiff can establish a claim of liability based on an unconstitutional

“custom.” To do so, the plaintiff must prove:

1) The existence of a continuing, widespread, persistent pattern of unconstitutional

misconduct by the governmental entity’s employees;

2) Deliberate indifference to or tacit authorization of such conduct by the

governmental entity's policymaking officials after notice to the officials of that

misconduct; and

3) That plaintiff was injured by acts pursuant to the governmental entity’s custom,

i.e., that the custom was a moving force behind the constitutional violation.

Johnson v. Douglas Cty. Med. Dep’t, 725 F.3d 825, 828 (8th Cir. 2013). Finally, a plaintiff can

show municipal liability by establishing a deliberate indifference by failing to train or supervise.

employees.” S.M. v. Lincoln Cty., 874 F.3d 581, 585 (8th Cir. 2017).

Plaintiff’s complaint does not provide any factual allegations to support a municipal

liability claim against St. Louis County. A policy is a “deliberate choice of a guiding principle or

procedure made by the municipal official who has final authority regarding such matters.” Corwin,

829 F.3d at 700. Plaintiff points to no facts tending to show that a St. Louis County official made

a deliberate choice to institute an official policy that is either unconstitutional on its face or in its

implementation.

Plaintiff also has not provided any factual allegations to support the contention that a St.

Louis County official violated his constitutional rights due to an unofficial custom. To demonstrate

that a municipality has an unofficial custom, plaintiff must show a widespread pattern of

misconduct, that policymaking officials were deliberately indifferent to or tacitly authorized the

misconduct, and that the custom was the driving force behind the constitutional violation. Johnson,

725 F.3d at 828. Plaintiff does not make any specific allegations of widespread misconduct. In

other words, he has not alleged that searches were occurring on others in the Detention Center who

were also pretrial detainees. To the contrary, plaintiff alleges that his treatment was personal. He

alleges that he was searched twice, and that he told Director Burris that the searches performed on

him, as a pretrial detainee, were illegal.1

To establish municipal liability, plaintiff must allege facts showing that the county has an

unconstitutional policy, unofficial custom, or has failed to train or supervise its employees. See

Mick v. Raines, 883 F.3d 1075, 1089 (8th Cir. 2018). Plaintiff has not alleged facts regarding any

1Although plaintiff has also alleged conditions of confinement claims and claims relating to a failure to

respond to his grievances, these claims are also personal to plaintiff and do not reflect policy or custom

claims.

the county’s liability. Therefore, plaintiff’s claims against defendants are subject to dismissal.

A. Individual Capacity Claim Against Defendant Burris

Plaintiff sues defendant Burris in his individual capacity. All other defendants are sued in

their official capacities only. Plaintiff has made only one claim that involves defendant Burris in

this action relative to his individual capacity. He asserts that he told defendant Burris that searching

pretrial detainees like himself was wrong.

A “search” within the meaning of the Fourth Amendment occurs when “‘the government

violates a subjective expectation of privacy that society recognizes as reasonable.’” Arnzen v.

Palmer, 713 F.3d 369, 372 (8th Cir. 2013) (quoting Kyllo v. United States, 533 U.S. 27, 31–33

(2001)). However, jail administrators have wide latitude to adopt search procedures at intake for

purposes of safety and security. The Supreme Court has recognized the importance of making sure

contraband is not injected into a jail's population. “Correctional officials have a legitimate interest,

indeed a responsibility, to ensure that jails are not made less secure by reason of what new

detainees may carry in on their bodies.” Florence v. Bd. of Chosen Freeholders of County of

Burlington, 566 U.S. 318, 322 (2012) (jail administrators may require strip searches at intake, even

of detainees arrested for minor offenses).2 In Florence, the Court noted the Constitution would

allow jailers to strip search – without individualized suspicion – all detainees entering the jail. Id.

at 330 (“The question here is whether undoubted security imperatives involved in jail supervision

override the assertion that some detainees must be exempt from the more invasive search

2In Florence, the Supreme Court noted that correctional officers must be allowed to conduct an effective

search of detainees— even those held for minor offenses—before they are admitted to a general jail

population, and that “this will require at least some detainees to lift their genitals or cough in a squatting

position.” Florence, 566 U.S. at 3; Id. at 1520.

Court has held that deference must be given to the officials in charge of the jail unless there is

‘substantial evidence’ demonstrating their response to the situation is exaggerated”)

Here, plaintiff identifies one strip search that occurred at intake for the St. Louis County

Detention Center, prior to his release into general population. Plaintiff does not indicate who

allegedly told him to “bend over and spread his buttocks.” Doc. [1] at 3. He has certainly not

indicated that the person who asked for the search was defendant Burris. He also identifies a second

strip search; however, he does not indicate why the second strip search was asked for, or by whom.

Again, plaintiff has certainly not stated that defendant Burris asked for the search of plaintiff. See

Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (finding that liability under § 1983

requires a causal link to, and direct responsibility for, the alleged deprivation of rights); see also

Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) (noting that general responsibility for

supervising operations of prison is insufficient to establish personal involvement required to

support liability under § 1983).

Given what the Supreme Court has said about the strong institutional interests in

maintaining security and the reasonableness of visual body-cavity inspections when detainees

enter a facility, plaintiff’s allegations of a body-cavity search by itself does not state a claim for

the violation of a clearly established right. Furthermore, this Court is cognizant that plaintiff has

not alleged that any defendant touched plaintiff in an untoward manner, and the scope of the search

was visual in nature. See Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (citing Whren v United

State, 517 U.S. 806, 813 (1996)) (searches conducted in an abusive fashion are unreasonable).

Furthermore, plaintiff has not connected defendant Burris to the searches identified by plaintiff.

Thus, the Court cannot say that plaintiff’s rights were violated at the time he was asked to submit

to the visual searches in the Detention Center.

with respect to his remaining claims, the Court will still address plaintiff’s conditions of

confinement claims and failure to respond to his grievance claims as if he made individual capacity

claims against the remaining defendants. See Madewell, 909 F.2d at 1208 (8th Cir. 1990).

Plaintiff’s allegations that defendants failed to adequately respond to his grievances fails

to state a constitutional claim. An inmate has a liberty interest in the nature of his confinement, but

not an interest in the procedures by which the state believes it can best determine how he should

be confined. Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996). As such, “there is no

constitutional liberty interest in having state officers follow state law or prison officials follow

prison regulations.” Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003). See also Jenner v.

Nikolas, 828 F.3d 713, 716-17 (8th Cir. 2016) (explaining that “[t]he existence of a state-mandated

procedural requirement does not, in and of itself, create a constitutionally protected liberty

interest”). To that end, a prison grievance procedure is a procedural right only and does not confer

upon an inmate a substantive right. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). See also

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

denial of [plaintiff’s] grievances did not state a substantive constitutional claim”); and Fallon v.

Coulson, 5 F.3d 531, 1993 WL 349355, at *1 (8th Cir. 1993) (unpublished opinion) (stating that

the failure of defendants “to acknowledge receipt of and respond to plaintiffs’ grievances pursuant

to prison procedure did not violate any of plaintiffs’ constitutional rights”). As such, plaintiff’s

contention that defendants failed to follow the grievance procedures at the St. Louis County

Detention Center fails to state a claim for relief.

Plaintiff contends that he had to sleep on the floor of a cell due to overcrowding at the

Detention Center for an unspecified time, and that in one, or some of the cells he was in, the light

was on approximately twenty-four hours per day. Doc. [1] at 3. This claim also fails to state a

it permit inhumane ones.” Brown v. Nix, 33 F.3d 951, 955 (8th Cir. 1994). The Supreme Court has

determined that the government may detain defendants before trial and “subject [them] to the

restrictions and conditions of [a] detention facility so long as those conditions and restrictions do

not amount to punishment, or otherwise violate the Constitution.” Bell v. Wolfish, 441 U.S. 520,

536-37 (1979). To that end, there are two ways to determine whether conditions rise to the level

of punishment. Stearns v. Inmate Services Corp., 957 F.3d 902, 907 (8th Cir. 2020). First, a

plaintiff can show that his or her conditions of confinement were intentionally punitive. Id. Second,

in lieu of an “expressly demonstrated intent to punish,” a plaintiff can “also show that the

conditions were not reasonably related to a legitimate governmental purpose or were excessive in

relation to that purpose.” Id. If conditions are arbitrary or excessive, it can be inferred that the

purpose of the governmental action is punishment that may not be constitutionally inflicted upon

pretrial detainees. Id. “However, not every disability imposed during pretrial detention amounts to

punishment in the constitutional sense.” Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996).

In determining whether pretrial detention is unconstitutionally punitive, the United States

Court of Appeals for the Eighth Circuit has applied the deliberate indifference standard. Owens v.

Scott Cty. Jail, 328 F.3d 1026, 1027 (8th Cir. 2003). See also Walton v. Dawson, 752 F.3d 1109,

1117 (8th Cir. 2014) (“To succeed on a claim under the Due Process Clause of the Fourteenth

Amendment, a pretrial detainee…must show the defendant official was deliberately indifferent to

his rights”). In particular, the Eighth Circuit has explained that this standard is applicable when

“the governmental duty to protect at issue…is not based on a pretrial detainee’s right to be free

from punishment but is grounded in principles of safety and well-being.” Butler v. Fletcher, 465

F.3d 340, 344 (8th Cir. 2006). To that end, the Eighth Circuit has held “that deliberate indifference

is the appropriate standard of culpability for all claims that prison officials failed to provide pretrial

The length of time an inmate endures an allegedly unconstitutional condition of confinement is a

factor in determining whether there has been a constitutional violation.

Plaintiff’s claim relating to overcrowding seems to assume that inmates are not allowed to

sleep on a cell floor. Triple-celling is not in and of itself unconstitutional. McCree v. Sherrod, 408

Fed.Appx 990 (7th Cir. 2011); Hubbard v. Taylor, 538 F.3d 229 (3d Cir.2008); Strickler v. Waters,

989 F.2d 1375 (4th Cir.1993). Rather, triple-celling is only unconstitutional if it leads to

“deprivations of essential food, medical care, or sanitation.” Cody v. Hillard, 820 F.2d 912, 914

(8th Cir. 1987). Plaintiff must show that triple-celling deprives him “of the minimal civilized

measures of life’s necessities is unconstitutional.” Morris v. Zefferi, 601 F.3d 805, 809 (8th Cir.

2010).

Plaintiff does not allege any facts to demonstrate that sharing a cell rises to the level of a

violation of his constitutional rights. For example, he makes no allegation that he was forced to

sleep under a bunk or that he was forced to sleep near the toilet. He also does not allege that sharing

a cell affected his health or his hygiene. Plaintiff's conclusory complaints regarding sleeping on

the floor for an unspecified time and sleeping in a cell with the light on for an unspecified time

here clearly do not meet the punitive standard. Thus, these claims are subject to dismissal.

Plaintiff also complains that when he talked back and refused to sleep on the floor, he was

placed in disciplinary segregation by defendant Unknown Lewis. Doc. [1] at 3. To prevail on a

Fourteenth Amendment due process claim, a plaintiff must first demonstrate that he or she was

deprived of life, liberty, or property by government action. Phillips v. Norris, 320 F.3d 844, 846

(8th Cir. 2003). See also Singleton v. Cecil, 155 F.3d 983, 987 (8th Cir. 1998) (explaining that to

claim a due process violation, plaintiff has to be deprived of either life, liberty, or property,

otherwise “it does not matter whether one has received due process or not”). As life or property is

Phillips, 320 F.3d at 847.

The United States Supreme Court has determined that prisoners have a protected liberty

interest in avoiding conditions of confinement that impose an “atypical and significant hardship

on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,

484 (1995). As such, to assert a due process violation based on a liberty interest of avoiding

administrative segregation, “an inmate must show that the segregation created an atypical and

significant hardship on him in relation to the ordinary incidents of prison life to demonstrate that

his liberty interest was curtailed.” Rahman X v. Morgan, 300 F.3d 970, 973 (8th Cir. 2002).

The Eighth Circuit has stated that an assignment to disciplinary or administrative

segregation is not, in and of itself, an atypical and significant hardship. See Portley-El v. Brill, 288

F.3d 1063, 1065 (8th Cir. 2002) (stating that Eighth Circuit has “consistently held that

administrative and disciplinary segregation are not atypical and significant hardships under

Sandin”); Kennedy v. Blankenship, 100 F.3d 640, 642 (8th Cir. 1996) (stating that plaintiff’s

“demotion from administrative segregation to punitive isolation is not the sort of deprivation that

qualifies as atypical and significant”); and Wycoff v. Nichols, 94 F.3d 1187, 1190 (8th Cir. 1996)

(stating that plaintiff “has no liberty interest in avoiding administrative segregation unless the

conditions of his confinement present the type of atypical, significant deprivation in which a state

might conceivably create a liberty interest”). This is so even if the demotion to segregation is

without cause. Phillips, 320 F.3d at 847.

Plaintiff does not state if the conditions in segregation were different than in general

population. However, he does indicate that his stay in disciplinary (or administrative) segregation

was for a mere day. The Eighth Circuit has found in other cases that as much as nine months in

disciplinary segregation is not an atypical or significant hardship. See Kennedy, 100 F.3d at 641-

Larkins, 610 F.3d 1032, 1033-34 (8th Cir. 2010) (stating that nine months in administrative

segregation did not constitute an atypical and significant hardship). Accordingly, this Court cannot

find that plaintiff’s placement in disciplinary segregation for one day for failure to follow an order

was a due process violation.

Last, plaintiff complains that his back hurt during his incarceration. He also complains that

he suffered from lack of sleep during his incarceration, and the nurses in the Justice Center would

only prescribe Ibuprofen and Tylenol for his aches and pains. Doc. [1] at 3-5. Plaintiff, however,

fails to assert that he had a serious medical condition that he sought treatment for, from medical

personnel who denied him treatment.

“A serious medical need is one that has been diagnosed by a physician as requiring

treatment, or one that is so obvious that even a layperson would easily recognize the necessity for

a doctor’s attention.” Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). To establish deliberate

indifference, a plaintiff must prove that he suffered from an objectively serious medical need, and

that prison officials knew of and disregarded that need. Roberts v. Kopel, 917 F.3d 1039, 1042 (8th

Cir. 2019). See also Hamner v. Burls, 937 F.3d 1171, 1177 (8th Cir. 2019). Because plaintiff has

not established that his minor back pains and headaches are serious medical needs or that he sought

treatment from one of the named defendants and was denied treatment, he cannot state a claim for

deliberate indifference to his serious medical needs.

Based on the aforementioned, plaintiff’s complaint fails to state a claim upon which relief

may be granted. This matter will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

Accordingly,

IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis, Doc.

[2], is GRANTED.

IT IS FURTHER ORDERED that the plaintiff shall pay an initial 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) that the remittance is for an original proceeding.

IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C.

§ 1915(e)(2)(B).

IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel, Doc.

[4], is DENIED AS MOOT.

IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in

good faith.

An Order of Dismissal will accompany this Memorandum and Order,

Dated this 7th day of March, 2022. /

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UNITED STATES DISTRICT JUDGE

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