Stewart v. Stanfeld

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

JAMES STEWART, )

Plaintiff,

V. No. 1:21-cv-00183-ACL

BILLY JOLE STANFELD, et al.,

Defendants.

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff James Stewart 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 $37.10. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court

will dismiss this action without prejudice.

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.

In support of his motion for leave to proceed in forma pauperis, plaintiff has submitted a

copy of his inmate account statement. (Docket No. 5). The account statement shows an average

monthly deposit of $185.50. The Court will therefore assess an initial partial filing fee of $37.10,

which is 20 percent of plaintiff's average monthly deposit.

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 y. 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 Pemiscot County

Jail in Caruthersville, Missouri. He brings this civil action pursuant to 42 U.S.C. § 1983, naming

the following six defendants: (1) Police Chief Billy Jole Stanfeld; (2) Officer Larry Jared; (3)

Officer John R. Trimm; (4) Nurse Christian Tate; (5) the City of Steele Police Department; and

(6) Correctional Officer Nakita Vower. (Docket No. 1 at 2-4). Defendants Stanfeld, Jared, Trimm,

Tate, and Vower are sued in both their official and individual capacities.

The complaint is on a Court-provided 42 U.S.C. § 1983 form. In the “Statement of Claim”

section, plaintiff has used the space provided to name some of the defendants in this action. His

allegations are presented on three additional sheets of paper that have been attached to the

complaint. To better understand the nature of plaintiff's claims, the Court will go through each of

the pages below.

On the first page, plaintiff asserts that he is “writing due to...passing out” because of his

“diabetics.” (Docket No. ] at 11). When he passed out, he hit his head and “was unresponsive.”

Plaintiff states that “[t]hey then threw me in the holding cell B-6,” and that he cannot provide the

date and time because “[Pemiscot] County deleted [his] grievance form.” There is no indication as

to which defendants were involved in this incident.

On the second page, plaintiff asserts that defendant Jared ran him “off the [road] at gun

point at 3 a.m. for no reason,” and that he robbed him for “300 bucks on” his birthday. (Docket

No. 1 at 12). Plaintiff further states that Jared “put fake” gun charges on him that were later thrown

out by a judge. He also alleges that Jared has been “going around town looking for” him, that Jared

has been “texting [plaintiff's] inbox” and “calling [him] all types of names,” and that Jared has

also been calling his wife and mother looking for him.

As to defendant Trimm, plaintiff asserts that Trimm charged him “with fake [charges] as

well.” He speculates that this occurred because Trimm and “[plaintiff’s] step father have [a drug

business] going” on, and that Trimm “came up short [and] put the blame on” him. Plaintiff also

alleges that Trimm “‘bust[ed] [his] head and burn[ed] down [his] house.” He insists that “[i]t got to

the point that the mayor call[ed] [him] down town [to] ask [him] why” he had not filed “a lawsuit

on them because if not they [were going] to kill” him.

On the third page, plaintiff lists the names, addresses, and telephone numbers of four

purported witnesses for his case. (Docket No. | at 13). He provides no indication as to what they

witnessed.

Plaintiff has left the “Injuries” section of his form complaint blank. (Docket No. 1 at 3).

Nevertheless, he seeks $1 million “or mor[e]” in damages “for unusual punishment and false

imprisonment.” (Docket No. | at 5). Plaintiff also feels that defendants “need to be in jail for the

[false] statement[s]” they made, and for lying in his case.

Discussion

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

1983. 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 must dismiss

this action without prejudice.

A. Steele Police Department

Plaintiff has named the Steele Police Department as a defendant in his action. A police

department, however, is not a distinctly suable entity under 42 U.S.C. § 1983. See Ketchum v. City

of West Memphis, Ark., 974 F.2d 81, 82 (8 Cir. 1992) (affirming dismissal of West Memphis

Police Department and West Memphis Paramedic Services because they were “not juridical

entities suable as such”). See also Owens v. Scott Cty. Jail, 328 F.3d 1026, 1027 (8" Cir. 2003)

(stating that “county jails are not legal entities amenable to suit”); and De La Garza v. Kandiyohi

Cty. Jail, 18 Fed. Appx. 436, 437 (8" Cir. 2001) (affirming district court dismissal of county jail

and sheriff's department as parties because they are not suable entities). Because it is not suable,

plaintiff's claim against the Steele Police Department must be dismissed.

B. City of Steele

Even if the City of Steele is substituted as a defendant in place of the Steele Police

Department, plaintiff has still failed to state a claim. A local governing body such as the City of

Steele can be sued directly under 42 U.S.C. § 1983. See Monell v. Dep't of Soc. Servs. of City of

New York, 436 U.S. 658, 690 (1978). To prevail on this type of claim, the plaintiff must establish

the governmental entity’s liability for the alleged conduct. Kelly v. City of Omaha, Neb., 813 F.3d

1070, 1075 (8 Cir. 2016). Such 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.” Mick v. Raines, 883 F.3d 1075, 1079 (8" Cir. 2018). See also Marsh v.

Phelps Cty., 902 F.3d 745, 751 (8" 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”). Thus, there are three ways in which plaintiff can prove the liability of the City of Steele.

First, plaintiff can show the existence of an unconstitutional policy. “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 (8"" Cir. 2016). 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 (8" 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.” Jd. at 390.

“A policy may be either a policy statement, ordinance, regulation, or decision officially adopted

and promulgated by the municipality’s governing body.” Angarita v. St. Louis Cty., 981 F.2d 1537,

1546 (8" Cir. 1992).

Second, plaintiff can establish a claim of liability based on an unconstitutional “custom.”

In order to do so, plaintiff must demonstrate:

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 (8" Cir. 2013).

Finally, plaintiff can assert a municipal liability claim by establishing a deliberately

indifferent failure to train or supervise. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388

(1989) (explaining that inadequate training may serve as the basis for 42 U.S.C. § 1983 liability

only when “the failure to train amounts to deliberate indifference”). To show deliberate

indifference, a plaintiff must prove that the municipality “had notice that its procedures were

inadequate and likely to result in a violation of constitutional rights.” See Jennings v. Wentzville

R-IV Sch. Dist., 397 F.3d 1118, 1122 (8" Cir. 2005). Ordinarily, this is done by a plaintiff alleging

a “pattern of similar constitutional violations by untrained employees.” See S.M. v. Lincoln □□□□□

874 F.3d 581, 585 (8 Cir. 2017).

Plaintiff does not need to specifically plead the existence of an unconstitutional policy or

custom. Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8" Cir. 2004).

However, at a minimum, the complaint must allege facts supporting the proposition that an

unconstitutional policy or custom exists. Doe ex rel. Doe v. Sch. Dist. of City of Norfolk, 340 F.3d

605, 614 (8 Cir. 2003). In this case, plaintiff presents no facts whatsoever to support the

proposition that the City of Steele violated his constitutional rights due to an unconstitutional

policy, custom, or failure to train.

First, with regard to policy, plaintiff has not pointed to any “policy statement, ordinance,

regulation, or decision officially adopted and promulgated by the [City of Steele’s] governing

body” as being at issue in this case, let alone harming him by violating his constitutional rights.

Certainly, he has not alleged facts demonstrating that his rights were violated due to “a deliberate

choice of a guiding principle or procedure made by the municipal official who has final authority

regarding such matters.” Instead of presenting facts supporting the inference that the City of Steele

is somehow liable to him, plaintiff's facts — such as they are — focus on the actions of two

individuals.

Second, as to custom, plaintiff has not alleged the “existence of a continuing, widespread,

persistent pattern of unconstitutional misconduct by” City of Steele employees, much less that

Steele policymaking officials were deliberately indifferent to or tacitly authorized such

misconduct. Rather than a persistent pattern of misconduct, plaintiff has presented vague,

fragmentary, and conclusory facts regarding the actions of two individuals who are supposedly

police officers for the City of Steele. This is not sufficient to assert an unconstitutional custom

attributable to the city.

Third, regarding a failure to train, plaintiff has not shown that the City of Steele was

deliberately indifferent. That is, he has not asserted that the City of Steele “had notice that its

procedures were inadequate and likely to result in a violation of constitutional rights.” Typically,

this is done by alleging a “pattern of similar constitutional violations by untrained employees.” As

noted above, however, plaintiff has not established any sort of pattern of constitutional violations.

Finally, to the extent that plaintiff seeks to hold the City of Steele liable for the actions of

its employees, the Court notes that a municipality cannot be held liable merely because it employs

a tortfeasor. A.H. v. City of St. Louis, Mo., 891 F.3d 721, 728 (8 Cir. 2018) (“In an action under

§ 1983, a municipality...cannot be liable on a respondeat superior theory”).

For all these reasons, plaintiff has not stated a claim against the City of Steele. Therefore,

any claim against the City of Steele must be dismissed. See Ulrich v. Pope Cty., 715 F.3d 1054,

1061 (8" Cir. 2013) (affirming district court’s dismissal of Monell claim where plaintiff “alleged

no facts in his complaint that would demonstrate the existence of a policy or custom” that caused

the alleged deprivation of plaintiff's rights).

C. Official Capacity Claims

Plaintiff has sued defendants Stanfeld, Jared, Trimm, Tate and Vower in their official

capacities. 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 (8" Cir. 2017). Thus, a

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

employer.” Johnson y. Outboard Marine Corp., 172 F.3d 531, 535 (8" Cir. 1999). See also

Brewington v. Keener, 902 F.3d 796, 800 (8" Cir. 2018) (explaining that official capacity suit

against sheriff and his deputy “must be treated as a suit against the County”); Kelly, 813 F.3d at

1075 (stating that a “plaintiff who sues public employees in their official, rather than individual,

capacities sues only the public employer”); and Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8"" Cir.

2006) (stating that a “suit against a public official in his official capacity is actually a suit against

the entity for which the official is an agent’).

Defendants Stanfeld, Jared, and Trimm are alleged to be employed by the City of Steele.

Thus, the official capacity claims against them are treated as claims against the city itself, their

employer. To prevail, plaintiff must establish the City of Steele’s liability for the alleged conduct.

As discussed at length above, however, plaintiff has not stated a claim against the City of Steele.

Therefore, the official capacity claims against defendants Stanfeld, Jared, and Trimm must be

dismissed.

Meanwhile, defendants Tate and Vower are alleged to be employed by Pemiscot County.

Accordingly, the official capacity claims against them are treated as being made against the county.

To prevail, plaintiff must demonstrate that he was harmed due to a Pemiscot County policy,

custom, or failure to train. See Mick, 883 F.3d at 1079 (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”). Plaintiff has not

presented facts supporting the proposition that Pemiscot County had an unconstitutional policy or

custom, or was deliberately indifferent in failing to train or supervise its employees. More to the

point, Pemiscot County is not mentioned anywhere at all in the complaint, other than to note that

defendants Tate and Vower worked at the Pemiscot County Jail. Therefore, the official capacity

claims against Tate and Vower must be dismissed.

D. Individual Capacity Claims

Plaintiff has also sued defendants Stanfeld, Jared, Trimm, Tate and Vower in their

individual capacities. Individual liability in a 42 U.S.C. § 1983 case is personal. Frederick v.

Motsinger, 873 F.3d 641, 646 (8" Cir. 2017). In other words, “[g]overnment officials are

personally liable only for their own misconduct.” S.M. v. Krigbaum, 808 F.3d 335, 340 (8" Cir.

2015). As such, § 1983 liability “requires a causal link to, and direct responsibility for, the

deprivation of rights.” Mayorga v. Missouri, 442 F.3d 1128, 1132 (8" Cir. 2006) (quoting

Madewell v. Roberts, 909 F.2d 1203, 1208 (8"" Cir. 1990)). See also Kohl v. Casson, 5 F.3d 1141,

1149 (8"" Cir. 1993) (dismissing plaintiff's excessive bail claims because none of the defendants

set plaintiff's bail, and therefore, “there can be no causal connection between any action on the

part of the defendants and any alleged deprivation” of plaintiff's rights). To that end, plaintiff must

allege facts connecting each defendant to the challenged action. See Bitzan v. Bartruff, 916 F.3d

716, 717 (8" Cir. 2019).

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i. Defendants Stanfeld, Tate, and Vower

Plaintiff has not adequately alleged the personal responsibility of defendants Stanfeld, Tate,

and Vower for violating his constitutional rights. More precisely, plaintiff has not presented any

factual allegations against them at all. Though they appear listed as defendants, they are nowhere

mentioned in plaintiff's “Statement of Claim.” Simply listing an individual as a defendant is not

sufficient to assert their responsibility. See Allen v. Purkett, 5 F.3d 1151, 1153 (8" 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); and Krych v. Hvass, 83 Fed.

Appx. 854, 855 (8" Cir. 2003) (agreeing with district court dismissal of defendants who were

merely listed in the complaint, and who were not alleged to have been personally involved in the

constitutional violations). Therefore, the claims against defendants Stanfeld, Tate, and Vower must

be dismissed.

ii. Defendants Jared and Trimm

Plaintiff has made allegations of a sort against defendants Jared and Trimm. However, the

facts he has presented are not sufficient to state a 42 U.S.C. § 1983 claim for the following three

reasons.

a. Failure to Establish Defendants Acted Under Color of Law

First, plaintiff has not demonstrated that Jared and Trimm were acting under color of law.

To state a claim under 42 U.S.C. § 1983, “a plaintiff must allege sufficient facts to show (1) that

the defendant(s) acted under color of state law, and (2) that the alleged wrongful conduct deprived

the plaintiff of a constitutionally protected federal right.” Zutz v. Nelson, 601 F.3d 842, 848 (8"

Cir. 2010). “Generally speaking, a public employee acts under color of law when he exercises

power possessed by virtue of state law and made possible only because the wrongdoer is clothed

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with the authority of state law.” Johnson v. Phillips, 664 F.3d 232, 239-40 (8" Cir. 2011). This

element of a § 1983 claim is satisfied if a defendant acts or purports to act in the performance of

his official duties, even if he oversteps his authority and misuses his power. Dossett v. First State

Bank, 399 F.3d 940, 948 (8" Cir. 2005). However, “[a]cts of officials in the ambit of their personal

pursuits are plainly excluded from Section 1983 liability.” Magee v. Trustees of Hamline Univ.,

Minn., 747 F.3d 532, 535 (8" Cir. 2014).

In this case, plaintiff asserts that both Jared and Trimm are police officers. “[W]hether a

police officer is acting under color of state law turns on the nature and circumstances of the

officer’s conduct and the relationship of that conduct to the performance of his official duties.”

Roe v. Humke, 128 F.3d 1213, 1216 (8" Cir. 1997). Without an “actual or purported relationship

between the officer’s conduct and his duties as a police officer, the officer cannot be acting under

color of state law.” Ramirez-Peyro v. Holder, 574 F.3d 893, 900 (8" Cir. 2009). Factors as to

whether a police officer is acting under color of state law include: “whether the officer is on duty

and in uniform, the motivation behind the officer’s actions, whether the officer had access to the

victim because of his position, and whether the officer threatened official conduct in the future.”

Magee, 747 F.3d at 535.

Here, plaintiff has not adequately demonstrated that Jared and Trimm were acting under

color of law when they interacted with him. That is to say, he has not alleged that they were acting

in the performance of their official duties as police officers. For example, plaintiff accuses Jared

of robbing $300 from him on his birthday, but presents no facts to show that Jared took this action

under color of law. Specifically, he does not assert that Jared was on duty and in uniform when the

robbery took place; makes no mention of Jared’s potential motivations; does not assert that Jared

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had access to him because of Jared’s position; and does not allege that Jared threatened him with

official conduct in the future.

Likewise, plaintiff's allegations against Trimm do not show that Trimm was acting in the

performance of his duties. Quite to the contrary, he suggests that Trimm took action against him

because Trimm “came up short” in his “drugs business.” Furthermore, without further factual

support, the Court cannot find any relationship between Trimm’s purported burning of plaintiff's

house and his duties as a police officer.

Taken as a whole, plaintiff's “Statement of Claim” regarding Jared and Trimm is

fragmentary, conclusory, and lacks any explanatory context. Thus, there is no indication that the

accusations leveled against these defendants — including being run off the road, robbed, assaulted,

and having his house burned — occurred while defendants were in uniform, on duty, and performing

their functions as law enforcement officers. As such, plaintiff has failed to demonstrate the first

element of a 42 U.S.C. § 1983 claim.

b. Failure to Establish that Defendants Violated His Constitutional Rights

Relatedly, plaintiff has failed to establish a causal link between the actions taken by Jared

and Trimm and the violation of his federally protected constitutional rights. The paucity of his

facts simply do not plausibly state the existence of a constitutional violation. For instance, without

any additional enhancement, plaintiff writes that “Larry Jared ran [him] off the road at gun point

at 3 a.m. for no reason.” Because plaintiff makes no effort to describe the circumstances, it is

unclear if this took place in the context of a police chase, with Jared driving a patrol car and

attempting to effect an arrest, or whether this was a personal matter having nothing to do with the

execution of Jared’s law enforcement duties. In any event, without additional allegations, plaintiff

has not shown that a potential Fourth Amendment violation occurred.

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Similarly, plaintiff accuses Trimm of busting him on the head. Aside from this statement,

there is not a single other fact describing the situation in which this occurred. Thus, plaintiff has

not adequately described an act of excessive force under the Fourth Amendment.

Because plaintiff has not established a causal link demonstrating the liability of Jared and

Trimm, he has failed to state a 42 U.S.C. § 1983 claim.

c. Claim Regarding False Charges and False Arrest

Plaintiff has accused both Jared and Trimm of placing false charges against him. With

regard to these particular allegations, the Court can assume that Jared and Trimm were acting under

color of state law. However, plaintiff has provided absolutely no support for his conclusion that

Jared and Trimm indeed falsely accused him, leading to a subsequent false arrest and

imprisonment. That is, plaintiff has not provided even the most minimal factual allegations

showing that Jared and Trimm had him arrested or charged without any supporting probable cause,

or that explains why he believes they put “fake” charges on him.

Instead of providing such facts, plaintiff relies solely on labels and legal conclusions. This

is not sufficient to state a claim. See Wiles v. Capitol Indem. Corp., 280 F.3d 868, 870 (8" Cir.

2002) (“While the court must accept allegations of fact as true...the court is free to ignore legal

conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions

cast in the form of factual allegations”); and Neubauer v. FedEx Corp., 849 F.3d 400, 404 (8" Cir.

2017) (“A pleading that offers labels and conclusions or a formulaic recitation of the elements of

a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of

further factual enhancement”). For this reason as well, plaintiff has failed to state a claim against

defendants Jared and Trimm.

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E. Deliberate Indifference Claim

Aside from the claims against Jared and Trimm, plaintiff also notes that he passed out due

to his diabetes, hit his head, and was placed into a holding cell. To the extent that he is attempting

to state a deliberate indifference claim, however, he has not provided sufficient factual allegations

to demonstrate that he suffered from an objectively serious medical need, and that any of the

defendants actually knew of and disregarded that need. See Roberts v. Kopel, 917 F.3d 1039, 1042

(8 Cir. 2019). See also Hamner v. Burls, 937 F.3d 1171, 1177 (8" Cir. 2019). That is, plaintiff

has not indicated that any defendants intentionally denied or delayed his access to medical care,

intentionally interfered with his treatment, or intentionally interfered with his prescribed

medication. See Vaughn v. Lacey, 49 F.3d 1344, 1346 (8" Cir. 1995). While he asserts that he

passed out, he does not allege that he passed out because of anything that defendants did or did not

do. Likewise, plaintiff appears to complain that he was placed in a holding cell, but does not

suggest that any required medical treatment was denied to him. For these reasons, plaintiff's

deliberate indifference claim must be dismissed.

F. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. (Docket No. 3). The motion will be denied

as moot as this case is being dismissed without prejudice for failure to state a claim. See 28 U.S.C.

§ 1915(e)(2)(B).

Accordingly,

IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis (Docket

No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $37.10

within twenty-one (21) days of the date of this order. Plaintiff is instructed to make his remittance

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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 AS MOOT.

IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. See 28

U.S.C. § 1915(e)(2)(B). A separate order of dismissal will be entered herewith.

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

good faith.

Dated this YG day of J a.ne kK , 2022.

UNITED STATES DISTRICT JUDGE

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