Abbott v. Francis

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

DALE ALLEN ABBOTT, II, )

)

Plaintiff, )

)

v. ) Case No. 4:22-cv-526 MTS

)

DANNY FRANCIS, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on the motion of self-represented plaintiff Dale Allen

Abbott, II for leave to commence this civil action without prepayment of the required filing fee,

Doc. [4], motion for a restraining order, Doc. [3], and motion for appointment of counsel, Doc.

[2]. Having reviewed the motion to proceed without prepayment, and the financial information

submitted in support, the Court has determined plaintiff lacks sufficient funds to pay the entire

filing fee and will assess an initial partial filing fee of $106.40. See 28 U.S.C. § 1915(b)(1).

Furthermore, after reviewing the pleading under 28 U.S.C. § 1915(e)(2), the Court finds plaintiff’s

complaint fails to state a claim for relief, but he will be permitted to submit an amended complaint.

Plaintiff’s other motions will be denied.

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 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 his account. 28 U.S.C. § 1915(b)(2). The

agency having custody of the prisoner will forward these monthly payments to the Clerk of Court

each time the amount in the prisoner’s account exceeds $10.00, until the filing fee is fully paid.

Id.

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

of his certified inmate account statement. Doc. [5]. A review of plaintiff’s account from the

relevant period indicates an average monthly deposit of $8.50 and an average monthly balance of

$532.02. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will

assess an initial partial filing fee of $106.40, which is 20 percent of plaintiff’s average monthly

balance.

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 may be granted. An

action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S.

319, 328 (1989). An action fails to state a claim upon which relief may be granted if it does not

plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007).

“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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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 assume the veracity of well-pleaded

facts but need not accept as true “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555).

This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429

U.S. 97, 106 (1976). This means that “if the essence of an allegation is discernible,” the court

should “construe the complaint in a way that permits the layperson’s claim to be considered within

the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone

v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even self-represented complaints must

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). Federal courts are not required to assume facts that are not alleged,

Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules in order to excuse

mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113

(1993).

The Complaint

Plaintiff Dale Allen Abbott, II is an inmate currently incarcerated at Potosi Correctional

Center (“PCC”) in Mineral Point, Missouri. He filed the instant complaint on a Court-provided

‘Prisoner Civil Rights Complaint’ form pursuant to 42 U.S.C. § 1983. Doc. [1]. Plaintiff names

three defendants: (1) Warden Danny Francis; (2) Dr. Harry; and (3) Nurse Marrissa. Plaintiff

indicates he is bringing this action against Warden Francis and Dr. Harry in their official capacities

only, but does not specify in what capacity he is suing Nurse Marrissa.

In the statement of claim section of the form complaint, plaintiff alleges he is “being forced

medication without a court order.” Id. at 4. He states that when he refuses the medication he is

“tackled,” “stripped naked,” “held down,” “give[n] a shot,” and “placed in a suicide cell” where

he does not have access to soap, tissues, or toilet paper, and is fed out of a brown bag. Id. He

further alleges he has only been given one set of clothing, and has been denied showers and towels.

Id. He states he has seen defendant Dr. Harry, a psychiatrist, but they are unable to communicate

because he is a “foreign doctor.” Id. He also takes issue with his prescribed medication, explaining:

“I was on Respidal [sic] on the . . . streets when I was free. Now I’m on Xyprexson [sic]. It’s not

working at all.” Id. He further claims he has received 10 conduct violations since last August with

no due process. Plaintiff does not identify who allegedly forces him to take medication, places him

in a suicide cell with limited supplies, prescribes him medication, or denies him due process.

Plaintiff describes his injuries as “knees, tooth, self respect, [and] dignity.” Id. For relief,

he seeks “immediate transfer,” to be released to “general population,” and to “fix [his] tooth.” Id.

at 5. He does not seek any monetary damages. Under the “Relief” section, plaintiff asserts he is in

“imminent danger of serious physical harm” and “fear[s] for [his] life due to this litigation”

because “they’ve threatened [him] with an extension of more punishment[.]” Id.

Discussion

A. Official Capacity Claims

Plaintiff explicitly indicates he is suing defendants Warden Francis and Dr. Harry in their

official capacities only. Id. at 2-3. He is silent as to whether he brings this action against Nurse

Marrissa in her official capacity, individual capacity, or both. When a plaintiff does

not specify whether a defendant is being sued in her personal or official capacity, the court

interprets the complaint as including only official capacity claims. Egerdahl v. Hibbing Cmty.

Coll., 72 F.3d 615, 619 (8th Cir. 1995). This pleading requirement is strictly enforced by the Eighth

Circuit. See Murphy v. Arkansas, 127 F.3d 750, 755 (8th Cir. 1997). Thus, the Court will interpret

the instant complaint as stating only official capacity claims against the three named defendants.1

1 The Court notes that even if plaintiff’s complaint sued defendants in their individual capacities, such claims would

be subject to dismissal because he does not make any direct allegations against a specific defendant. See Krych v.

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 other words,

naming a government official in his or her official capacity is the equivalent of naming the

government entity that employs the official. See Will v. Michigan Dep't of State Police, 491 U.S.

58, 71 (1989). In this case, defendants Warden Francis is employed by the MDOC, or the State of

Missouri. As such, the official capacity claims against him are treated as being made against the

State itself. Defendants Dr. Harry and Nurse Marrissa are medical providers and the State of

Missouri has contracted with Centurion Health to provide all medical care in its Department of

Corrections facilities. As such, plaintiff’s claims against them are treated as being made against

Centurion.

Plaintiff does not seek monetary damages, and his complaint cannot be liberally construed

to seek such relief. To the extent that plaintiff seeks injunctive relief, he must demonstrate the

liability of the State of Missouri or Centurion for harming him. See Kelly v. City of Omaha, Neb.,

813 F.3d 1070, 1075 (8th Cir. 2016). Such liability may attach if the constitutional violation

“resulted from (1) an official . . . policy, (2) an unofficial custom, or (3) a deliberately indifferent

failure to train or supervise.” Mick v. Raines, 883 F.3d 1075, 1079 (8th Cir. 2018). See also Marsh

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

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

Hvass, 83 F. App'x 854, 855 (8th Cir. 2003) (affirming dismissal of plaintiff's complaint against defendants who were

listed as defendants in the complaint, but there were no allegations of constitutional harm against them). Although

plaintiff alleges he was forcibly given medication, denied supplies, and issued conduct violations without a hearing,

he does not allege that any of the three named defendants were responsible for such actions or even knew such events

occurred. See Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable under § 1983 where

plaintiff fails to allege defendant was personally involved in or directly responsible for incidents that injured

plaintiff); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in § 1983 suits).

extension of the same”). Thus, there are three ways in which plaintiff can prove the liability of the

State of Missouri or Centurion.

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 [governmental]

official who has final authority regarding such matters.” See Corwin v. City of Independence, Mo.,

829 F.3d 695, 700 (8th 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 (8th Cir. 2007). However, when “a policy is constitutional on its face, but it is

asserted that a [governmental entity] 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.

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

and promulgated by the [governmental entity’s] governing body.” Angarita v. St. Louis Cty., 981

F.2d 1537, 1546 (8th 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 (8th Cir. 2013).

Finally, plaintiff can assert a 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 governmental entity “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 (8th Cir. 2005). Ordinarily, this is done by a plaintiff alleging a “pattern of similar

constitutional violations by untrained employees.” See S.M. v. Lincoln Cty., 874 F.3d 581, 585

(8th Cir. 2017).

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

custom. See Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th 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 (8th Cir. 2003). In this case, plaintiff has not presented any facts supporting that the State

of Missouri or Centurion has harmed him due to an unconstitutional policy, custom, or failure to

train.

First, plaintiff has not established the existence of an unconstitutional policy. While he

challenges the use of forced medication for treatment of his mental health disorder, he has not

presented any facts regarding the existence or application of any forced medication policy by the

State of Missouri or Centurion. In other words, he does not allege the denial of an adversarial

proceeding within the facility was the result of a state mandated policy.2 Additionally, plaintiff

2 “To meet the procedural requirements of Due Process in the involuntary administration of antipsychotic drugs to a

prisoner, there must be: (1) notice; (2) the right to be present at an adversarial hearing; (3) the right to present witnesses;

and (4) the right to cross-examine witnesses. Kennemore v. Dep't of Mental Health, 2022 WL 1223629, at *11 (E.D.

Mo. Apr. 26, 2022) (citing Washington v. Harper, 494 U.S. 210, 231 (1990)). See also Doby v. Hickerson, 120 F.3d

does not assert any facts regarding an unconstitutional policy related to suicide cell assignments

or the issuance of conduct violations.3 As to his claim regarding a preference for a different

medication, it unequivocally fails to state a constitutional violation. See e.g., Popoalii v.

Correctional Medical Services, 512 F.3d 488, 499 (8th Cir. 2008) (“A mere disagreement with

treatment decisions does not rise to the level of a constitutional violation.”).

Second, plaintiff has not demonstrated that he was harmed by an unconstitutional custom,

as he has not shown the “existence of a continuing, widespread, persistent pattern of

unconstitutional misconduct by the [State of Missouri’s or Centurion’s] employees,” much less

that policymakers were deliberately indifferent to or tacitly authorized such misconduct. Far from

describing a “persistent pattern of unconstitutional misconduct,” plaintiff’s allegations solely

involve his own treatment within PCC.

Third, plaintiff has not alleged that the State of Missouri or Centurion were deliberately

indifferent in failing to train or supervise its employees. To show deliberate indifference, plaintiff

must prove that the state “had notice that its procedures were inadequate and likely to result in a

violation of constitutional rights.” Typically this is satisfied by alleging a “pattern of similar

constitutional violations by untrained employees.” As noted above, plaintiff’s facts do not properly

allege a constitutional violation, let alone a pattern.

111, 113 (8th Cir. 1997) (explaining that the “minimal constitutional requirements for satisfying procedural due

process when a state involuntarily administers antipsychotics to a prisoner” consists of “an independent decisionmaker

as well as for notice, the right to be present at an adversary hearing, and the right to present and cross-examine

witnesses”). “A judicial hearing is not required, and the hearing may be adjudicated by non-treating medical

personnel.” Id.

3 In order to make a claim he was denied due process in receipt of a conduct violation, plaintiff would have to allege

the punishment he received as a result of the flawed disciplinary process was an “atypical and significant hardship on

[him] in relation to the ordinary incidents of prison life.” Burke v. St. Louis County Jail, et al., 2022 WL

1718868, at *8 (E.D. Mo. May 27, 2022) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Plaintiff makes no

such claim here.

Finally, to the extent plaintiff might seek to hold the State of Missouri or Centurion liable

for the actions of its employees, the Court notes that either entity cannot be held liable under 42

U.S.C. § 1983 simply because it employs a tortfeasor. See A.H. v. City of St. Louis, Mo., 891 F.3d

721, 728 (8th Cir. 2018) (“In an action under § 1983, a [governmental entity] . . . cannot be liable

on a respondeat superior theory”); Smith v. Insley's Inc., 499 F.3d 875, 880 (8th Cir. 2007)

(citing Sanders v. Sears Roebuck and Company, 984 F.2d 972, 975-76 (8th Cir. 1993) (“A

corporation acting under color of state law . . . will not be liable on a respondeat superior theory.”).

For all the reasons discussed above, plaintiff has failed to state official capacity claims

against defendants and his complaint is subject to dismissal.

B. Request for Immediate Transfer

The only relief plaintiff seeks is the Court to order his immediate transfer to another

correctional institution, to be released into general population, and to fix his tooth. Such relief is

not available to him in this action.

First, transfers to another prison are entirely within the discretion of prison officials, Lyon

v. Farrier, 727 F.2d 766, 768 (8th Cir.1984), and prisoners have no justifiable expectation that

they will be incarcerated in any particular prison within a state. Olim v. Wakinekona, 461 U.S. 238,

245 (1983); Murphy v. Missouri Dept. of Correction, 769 F.2d 502, 503 (8th Cir. 1985). Prison

authorities have a great deal of discretion in running their institutions, and such discretion normally

outweighs any interest that any individual prisoner may have in remaining housed in a particular

prison. Rouse v. Benson, 193 F.3d 936, 940 (8th Cir. 1999). Any protected interest plaintiff might

have in being incarcerated in a particular state prison would have to be created by state law. See

Hewitt v. Helms, 459 U.S. 460, 469 (1983). Plaintiff has failed to allege the existence of such a

law.

Second, “constitutionally speaking, assignments [by correctional institutions] are

discretionary, so long as they are not done for prohibited or invidious reasons and do not rise to

independent constitutional violations on their own weight.” Moorman v. Thalacker, 83 F.3d 970,

973 (1996) (citing Vitek v. Jones, 445 U.S. 480 (1980); Sisneros v. Nix, 884 F. Supp. 1313, 1346

(S.D. Iowa 1995)).While plaintiff may disagree with his placement in segregation within a suicide

cell, inmates have no constitutional right to any specific classification or housing assignment. Allen

v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993). Plaintiff provides no facts to support that his

placement in PCC was done for an unconstitutional reason.

Lastly, as to plaintiff’s request to “fix [his] tooth,” such relief cannot be granted as he does

not allege any constitutional violations in his statement of claim related to the provision of dental

care or any incidents involving damage to his teeth due to the behavior of a state actor.

C. Motion for Restraining Order

Plaintiff filed a document titled “Petition for Restraining Order” at the same time he filed

his complaint. Doc. [3]. The document does not provide any support for the requested relief,

instead, the motion states in its entirety: “Now comes pla[i]ntiff to move this Court to move in

favor of pla[i]ntiff as these atrococities [sic] continue to accourr [sic] daily. Therefore pla[i]ntiff

prays this honorable court approves this most favorable motion.” Id.

A Court issues injunctive relief in a lawsuit to preserve the status quo and prevent

irreparable harm until the Court has the opportunity to rule on the lawsuit’s merits. See Devose v.

Herrington, 42 F.3d 470, 471 (8th Cir. 1994). In determining whether to issue a preliminary

injunction, the Court must consider four factors: (1) the threat of irreparable harm to the movant;

(2) the potential harm to the nonmoving party should an injunction issue; (3) the likelihood of

success on the merits; and (4) the public interest. See Dataphase Sys., Inc. v. C.L. Sys., Inc., 640

F.2d 109, 113 (8th Cir. 1981). These same standards also apply to a request for a temporary

restraining order. See S.B. McLaughlin & Co. v. Tudor Oaks Condo. Project, 877 F.2d 707, 708

(8th Cir. 1989) (affirming application of Dataphase factors to a motion for a temporary restraining

order). “None of these factors by itself is determinative; rather, in each case the four factors must

be balanced to determine whether they tilt toward or away from granting” injunctive relief. West

Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1222 (8th Cir. 1986). The burden of proof is

on the party seeking injunctive relief. Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th

Cir. 1987).

“The dramatic and drastic power of injunctive force may be unleashed only against

conditions generating a presently existing actual threat; it may not be used simply to eliminate a

possibility of a remote future injury, or a future invasion of rights.” Rogers v. Scurr, 676 F.2d

1211, 1214 (8th Cir. 1982). Thus, the inquiry is “whether the balance of equities so favors the

movant that justice requires the court to intervene to preserve the status quo until the merits are

determined.” Dataphase, 640 F.2d at 113. The Court is mindful of the Eighth Circuit's admonition

that “in the prison context, a request for injunctive relief must always be viewed with great caution

because ‘judicial restraint is especially called for in dealing with the complex and intractable

problems of prison administration.’” Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995)

(quoting Rogers v. Scurr, 676 F.2d at 1214). “It is therefore all the more important that federal

courts abstain from imposing strict standards of conduct, in the form of injunctions, on prison

officials in the absence of a concrete showing of a valid claim and constitutionally mandated

directives for relief.” Rogers, 676 F.2d at 1214.

After weighing the Dataphase factors listed above, the Court finds plaintiff has failed to

demonstrate at this stage of the proceedings that he is likely to succeed on the merits of his claims

and that he will suffer an immediate and irreparable injury if the requested relief is denied.

Plaintiff’s two sentence request in his “Petition for Restraining Order” fails to demonstrate a valid

basis for the issuance of such drastic relief, and his complaint does not provide any evidence his

life is imminent danger or that if the Court does not transfer him to another institution there he will

suffer irreparable injury. As discussed above, plaintiff has not properly alleged a cause of action

under § 1983 against defendants in their official capacities, and he has not established a

constitutional violation on the part of defendants. Significantly, there are no factual allegations

against the named defendants in the motion or the complaint. See Taylor v. Potosi Correctional

Center, 2021 WL 351972, *3 (denying motion for restraining order because plaintiff had “yet to

file a complaint that survives initial review” and “therefore cannot be said that specific facts in a

verified complaint clearly show he will suffer immediate and irreparable injury, loss or damage

before the adverse party may be heard in opposition.”).

Moreover, plaintiff’s request for this Court to return him to the general population and

transfer him to another institution are not avenues of relief that are likely to succeed in a civil rights

complaint. See Clark v. Browers, 2005 WL 1926088, at *3 (E.D. Mo. Aug. 10, 2005) (dismissing

motion for restraining order requesting transfer to a different facility because “plaintiff does not

have a right to be held in the institution of his choosing”).

Plaintiff has not carried his burden of showing that a temporary restraining order should be

issued. Therefore, plaintiff’s motion for a restraining order will be denied without prejudice.

Instructions for Amending Complaint

As discussed above, the Court finds multiple pleading deficiencies in plaintiff’s complaint

against the three named defendants. However, because plaintiff is self-represented and claims for

forcible medication and conditions of confinement are serious allegations, he will be allowed

to amend his complaint on a Court-provided form in accordance with the instructions set forth

below.

Plaintiff is advised that the filing of an amended complaint completely replaces the original

complaint and the amended complaint, so it must include all claims plaintiff wishes to bring. 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 supersedes an original complaint and renders the original

complaint without legal effect”). Plaintiff must type or neatly print the amended complaint on the

Court-provided prisoner civil rights complaint form, and the amended complaint must comply with

the Federal Rules of Civil Procedure. See E.D. Mo. L.R. 2.06(A).

The Federal Rules of Civil Procedure require litigants to formulate their pleadings in an

organized and comprehensible manner. Even self-represented litigants are obligated to abide by

the Federal Rules of Civil Procedure and to plead specific facts as to each named

defendant. See U.S. v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). Plaintiff is required to set out his

alleged claims in a simple, concise, and direct manner, and also the facts supporting his claims as

to each named defendant. See Fed. R. Civ. P. 8(a)(2) (complaint should contain short and plain

statement of claims); 8(d)(1) (each claim shall be simple, concise, and direct); 10(b) (parties are to

separate their claims within their pleadings and the contents of which shall be limited as far as

practicable to a single set of circumstances). Plaintiff should fill out the complaint form in its

entirety.

In the “Caption” section of the complaint form, plaintiff must state the first and last name,

to the extent he knows it, of the defendant or defendants he wants to sue. See Fed. R. Civ. P. 10(a)

(“The title of the complaint must name all the parties”). Plaintiff must indicate whether he intends

to sue each defendant in his or her individual capacity, official capacity, or both. Plaintiff should

avoid naming anyone as a defendant unless that person is directly related to his claim(s).

In the “Statement of Claim” section, plaintiff should begin by writing the defendant’s

name. In separate, numbered paragraphs under that name, plaintiff should write the specific facts

supporting his claim or claims against that defendant. If plaintiff is suing more than one defendant,

he should proceed in the same manner with each one, separately writing each individual

defendant’s name and, under that name, in numbered paragraphs, the factual allegations supporting

his claim or claims against that defendant. Plaintiff should only include claims that arise out of the

same transaction or occurrence, or simply put, 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 him or her. See Fed. R. Civ. P. 18(a). Plaintiff’s failure to make specific

factual allegations against any defendant will result in that defendant’s dismissal. Furthermore, the

Court emphasizes that the “Statement of Claim” requires more than “labels and conclusions or a

formulaic recitation of the elements of a cause of action.” See Neubauer v. FedEx Corp., 849 F.3d

400, 404 (8th Cir. 2017).

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. 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”). Plaintiff must explain the role of each

defendant so that each defendant will have notice of what he or she is accused of doing or failing

to do. 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.”). For example, plaintiff names Warden Francis as a defendant

in the instant case but does not explain his personal involvement in the alleged constitutional

violations. It is well settled that “a warden’s general responsibility for supervising the operations

of a prison is insufficient to establish personal involvement.” Reynolds v. Dormire, 636 F.3d 976,

981 (8th Cir. 2011). See Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) (“[A] general

responsibility for supervising the operations of a prison is insufficient to establish the personal

involvement required to support liability.”).

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 may dismiss this action without

prejudice and without further notice to plaintiff.

Motion to Appoint Counsel

Lastly, plaintiff has filed a motion for appointment of counsel. Doc. [2]. In civil cases, a

self-represented litigant does not have a constitutional or statutory right to appointed counsel.

Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013). See also Stevens v. Redwing, 146 F.3d 538, 546

(8th 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.” Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether

to appoint counsel for an indigent litigant, a court considers relevant factors such as the complexity

of the case, the ability of the self-represented litigant to investigate the facts, the existence of

conflicting testimony, and the ability of the self-represented litigant to present his or her claim.

Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006).

After considering these factors, the Court finds that the appointment of counsel is

unwarranted at this time. Plaintiff has yet to file a complaint that survives initial review, so it

cannot be said that he has presented non-frivolous claims. Additionally, this case appears to

involve straightforward factual and legal issues, and there is no indication that plaintiff cannot

investigate the facts and present his claims to the Court. The Court will therefore deny his motion

without prejudice, and will entertain future motions for appointment of counsel, if appropriate, as

the case progresses.

Accordingly,

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

[4], is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $106.40

within thirty (30) days of the date of this order. Plaintiff is instructed to make his remittance

payable to “Clerk, United States District Court,” and to include upon it: (1) his name; (2) his prison

registration number; (3) the case number; and (4) the statement that the remittance is for an original

proceeding.

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

[2], is DENIED at this time without prejudice.

IT IS FURTHER ORDERED that plaintiff’s Petition for Restraining Order, Doc. [3],

is DENIED at this time without prejudice.

IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff two blank

Prisoner Civil Rights Complaint forms. Plaintiff may request additional forms as needed.

IT IS FURTHER ORDERED that plaintiff must file an amended complaint on the

Court’s form within thirty (30) days of the date of this Order. Plaintiff is advised that his amended

complaint will take the place of his original complaint and will be the only pleading that this Court

will review.

IT IS FURTHER ORDERED that upon submission of the amended complaint, the Court

shall again review this action pursuant to 28 U.S.C. § 1915.

IT IS FURTHER ORDERED that if plaintiff fails to timely comply with this

Memorandum and Order, the Court will dismiss this action without prejudice and without further

notice.

Dated this 15™ day of June, 2022. □ /

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My Pe

UNITED STATES DISTRICT JUDGE

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