Davis v. Dobbs

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

BRYCE DAVIS, )

)

Plaintiff, )

)

v. ) No. 1:22-cv-00038-SNLJ

)

MARK DOBBS, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Bryce Davis 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 $13.72. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court

will direct plaintiff to file an amended complaint.

28 U.S.C. § 1915(b)(1)

Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is

required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her

prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial

partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner’s

account, or (2) the average monthly balance in the prisoner’s account for the prior six-month

period. After payment of the initial partial filing fee, the prisoner is required to make monthly

payments of 20 percent of the preceding month’s income credited to the prisoner’s account. 28

U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these monthly

payments to the Clerk of Court each time the amount in the prisoner’s account exceeds $10.00,

until the filing fee is fully paid. Id.

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

copy of his inmate account statement. (Docket No. 3). The account statement shows an average

monthly deposit of $68.60. The Court will therefore assess an initial partial filing fee of $13.72,

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.” 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).

The Complaint

Plaintiff is a self-represented litigant who is currently incarcerated at the Butler County Jail

in Poplar Bluff, Missouri. He brings this civil action pursuant to 42 U.S.C. § 1983, naming fourteen

separate defendants: (1) Sheriff Mark Dobbs; (2) Jail Administrator Rodger Burton; (3) Jail

Administrative Consult Dave Light; (4) Correctional Officer 7 (CO) Samuel T.; (5) CO Lakeisha

Miller; (6) CO Unknown Ketchum; (7) CO Franscisco Vega; (8) Nurse Shane Unknown; (9) CO

Reggie Unknown; (10) Supervisor Unknown Taylor; (11) CO J. Allen; (12) Supervisor Jeff

Unknown; (13) CO 2 Mike McMean; and (14) Supervisor Luke Unknown. (Docket No. 1 at 1).

Sheriff Dobbs and Jail Administrator Burton are sued in both their official and individual

capacities. (Docket No. 1 at 2-3). Plaintiff does not indicate the capacity in which the other

defendants are sued.

In the “Statement of Claim,” plaintiff asserts that he “caught Covid-191 and was neglected

by officers, as well as denied medical attention.” (Docket No. 1 at 3). This occurred between mid-

January and mid-February at the “Butler County Justice Center.” Due to contracting the virus, he

suffered “loss of taste, loss of smell, fever, body aches,” inability to eat, cold sweats, headaches,

difficulty breathing, and other symptoms.

By way of further explanation, plaintiff states that he “notified all officers that [he] was

sick and told them [his] symptoms.” (Docket No. 1 at 4). He then lists a series of questions he

allegedly posed, stating that he “asked all officers if they would check [his] temperature,” that he

“asked all officers if they would allow us to use hand sanitizer,” that he “asked all officers how is

it that we have to use the same kiosk machine as the people who are sick,” that he “asked if they

would at least give [him] something to wipe…down [the kiosk machine],” that he “asked all

officers if they cared that we were being put at risk by them,” that he asked about his grievances

not being answered, that he asked why he had not been “seen [by] medical yet, when [he] put in a

request to see the nurse,” and that he “asked why they wouldn’t help [him].” Plaintiff also asked

to speak with Sheriff Dobbs, Officer McMean, Administrator Light, or Administrator Burton.

Following those questions, plaintiff purports to provide the responses he received from

both named and unnamed individuals.

In response to his notification that he was sick, plaintiff states that “all officers told [him]

to fill out a medical request form, which [he] did.” (Docket No. 1 at 5).

1 COVID-19 is the name of the disease caused by the novel coronavirus known as SARS-CoV-2, which originated in

China, spread globally, and resulted in the declaration of a national emergency. See Pres. Proc. No. 9994, 85 Fed. Reg.

15337, 2020 WL 1272563 (Mar. 13, 2020). See also Buljic v. Tyson Foods, Inc., 22 F.4th 730, 734 (8th Cir. 2021). In

the United States, the virus has resulted in hundreds of thousands of cases, and tens of thousands of deaths. See In re

Rutledge, 956 F.3d 1018, 1023 (8th Cir. 2020).

In response to his request to have his temperature taken, he states that “all officers claimed

to be too busy to check it.”

In response to his request for hand sanitizer, plaintiff contends that “all officers said that

inmates weren’t allowed to have it,” and that sanitizer and masks were “only for officers.”

In response to plaintiff’s inquiries about wiping down the kiosk machine, plaintiff asserts

that Officer Vega “put hand sanitizer on some tissue paper and stated if he could do more he would

but his hands were tied,” and that if it were up to Vega, “we would have our own sanitizer.”

Likewise, Officer Miller told him that it was “messed up” that plaintiff was “right next door to

people who have Covid,” that “they” would not allow Miller to “do nothing” for the inmates, even

though she asked, and that “they” did not care if the inmates got “sick, die, or nothing.” Officer

Taylor advised plaintiff that he understood plaintiff’s concerns, and would have the trustees wipe

the machine “if he has enough time,” while Officer Jeff stated that he “would check with Mike

[and] Dave but that[’]s all he could do” because “they told him not to give us anything.”

In addition, plaintiff states that Officer Allen told him that “these people don’t care,” that

“they tell us not to bother them” as long as the inmates were “not dying,” and that when he asked,

he was told to “ignore you if you ask constantly.” Officer Reggie told plaintiff the situation was

“messed up” and that he would do more if he could, “but he needs his job.” (Docket No. 1 at 6).

Similarly, Officer Ketchum advised that “it is messed up,” that he did not want the inmates to “get

sick either,” but that “they don’t want [him] giving you guys nothing.” Both Officer Samuel and

Supervisor Luke told plaintiff they understood his concerns, that there were limited things they

could personally do, but that they would ask their superiors. Despite being told that his complaints

would move higher, plaintiff alleges that Officer McMean, Administrator Burton, Sheriff Dobbs,

and Administrator Light “never spoke with [him].”

In response to plaintiff’s broad inquiry as to whether the officers “cared” that inmates were

being put at risk, plaintiff asserts that “all officers stated” that it was “not their job to care,” and

that “all they could do is what they[’]re told.”

In response to his grievance question, plaintiff states that Officer Miller told him “they

don’t read those things” and that “they” told the officers “to ignore y’all.” (Docket No. 1 at 6-7).

According to plaintiff, “all the other officers stated that if [he] put one in it made it where it was

supposed to go,” or “they had no idea that [he] filed one.” (Docket No. 1 at 7).

In response to his question about seeing medical, Officer Ketchum explained to plaintiff

that “he took [his] medical request [to] Officer Sam,” who told Ketchum “he would take care of

it.” Officer Samuel, however, told him that he “never received [plaintiff’s] request” from Officer

Ketchum, but “that if he did,” Samuel would have “dropped it in Nurse Shane[’]s box.” According

to plaintiff, “all the other officers stated they had nothing to do with how medical works” and that

plaintiff would be seen “when they had time.”

In response to plaintiff’s question as to “why they wouldn’t help [him],” plaintiff claims

that “all officers stated that all they could do is what they’re told,” and that even though they

“understood” his concerns and would help if they could, “they had their orders.”

In response to plaintiff’s requests to speak with defendants McMean, Light, Burton, and

Dobbs, plaintiff acknowledges speaking with Administrator Light. (Docket No. 1 at 8). When

plaintiff “told Dave what was going on,” Light responded that “he would send someone to test

[him] for Covid.” Nonetheless, plaintiff alleges that he has “not been tested for” Covid-19 or

influenza to this day. The Court notes that earlier in his “Statement of Claim,” he claims to have

contracted Covid-19, an assertion in contradiction to his contention that he has not been tested.

Plaintiff also notes that Administrator Light told him to “give [Light] some time” to help.

As to his request to speak with Sheriff Dobbs, plaintiff complains that he has not spoken

with the sheriff “to this day.”

Plaintiff closes his “Statement of Claim” by providing general allegations as to the handling

of COVID-19 at the Butler County Jail. He states that he has to “eat off of the same trays as inmates

who have or have had Covid 19/influenza,” that “officers don’t wear masks to prevent cross

contamination,” that he has “to use the same kiosk as inmates who have, have had or who are being

[quarantined] for Covid 19/influenza,” that he has seen officers coughing or sneezing while serving

food, that “officers are not getting tested for Covid-19 and declared negative before being able to

work around inmates,” that inmates are being put into pods “right off the street,” without testing

them first, that inmates do not have sanitizers, that “officers are coming to work sick without fully

recovering,” that an officer told him he would probably get COVID-19 because the officer had it,

and that inmates are not being asked if they want the vaccine. (Docket No. 1 at 9). Though he

states he has never been tested, plaintiff asserts that he has “had Covid twice” and still not been

vaccinated.

Based on these facts, plaintiff seeks release from confinement and his criminal charges

dropped. (Docket No. 1 at 10). He also seeks unspecified monetary damages, to be decided by a

jury.

Discussion

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

1983, alleging that his constitutional rights were violated due to defendants’ handling of the

COVID-19 pandemic. Because he is proceeding in forma pauperis, the Court reviewed his

complaint under 28 U.S.C. § 1915. Based on that review, and for the reasons discussed below, the

Court has determined that plaintiff’s complaint is deficient and subject to dismissal. However,

plaintiff will be given an opportunity to file an amended complaint according to the instructions

set forth below.

A. Deficiencies in Complaint

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

capacity claims against defendants Dobbs and Burton are treated as being made against Butler

County, their employer. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999)

(explaining that a “suit against a public employee in his or her official capacity is merely a suit

against the public employer”). In this case, however, plaintiff has not sufficiently alleged a

municipal liability claim against the county. See 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 extension of the same”). While plaintiff broadly

complains about the Butler County Jail’s handling of COVID-19, he does not attribute that

handling to any unconstitutional policy, custom, or failure to train on the part of the county itself.

Second, plaintiff has failed to state individual capacity claims against defendants Dobbs

and Burton, because he has not demonstrated their personal liability for violating his constitutional

rights. See Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006) (explaining that 42 U.S.C. §

1983 liability “requires a causal link to, and direct responsibility for, the deprivation of rights”).

Specifically, the only allegations against Sheriff Dobbs and Jail Administrator Burton consist of

plaintiff’s assertion that they did not speak with him. There is no support for the contention that

plaintiff has a constitutional right to personally speak with certain jail officials. Furthermore, there

are no facts establishing that Dobbs and Burton were personally responsible for violating plaintiff’s

rights with regard to the handling of COVID-19.

Third, plaintiff does not indicate the capacity in which he has sued defendants Light,

Samuel, Ketchum, Shane, Taylor, Jeff, Luke, Miller, Vega, Reggie, Allen, and McMean. As such,

the Court must assume that these defendants are sued in their official capacities only. Artis v.

Francis Howell North Band Booster Ass’n, Inc., 161 F.3d 1178, 1182 (8th Cir. 1998) (“If the

complaint does not specifically name the defendant in his individual capacity, it is presumed he is

sued only in his official capacity”). An official capacity claim is treated as being made against

defendants’ employer. However, as discussed above, plaintiff has not stated a municipal liability

claim against Butler County.

Fourth, even if plaintiff had sued defendants Light, Samuel, Ketchum, Shane, Taylor, Jeff,

Luke, Miller, Vega, Reggie, Allen, and McMean in their individual capacities, he has not

demonstrated each person’s direct responsibility for a constitutional harm. That is, he has not

shown that each individual bore personal responsibility for the conditions in the jail, the handling

of COVID-19, and the purported denial of plaintiff’s medical care. To the contrary, most of his

allegations concern the various defendants attempting to answer his questions or provide

assistance.

Rather than dismissing the complaint, plaintiff will be given an opportunity to file an

amended complaint according to the instructions set forth below. Plaintiff must follow these

instructions. Failure to follow these instructions may result in the dismissal of this action.

B. Amendment Instructions

Plaintiff should type or neatly print his amended complaint on the Court’s civil rights form,

which will be provided to him. See E.D. Mo. L.R. 2.06(A) (“All actions brought by self-

represented plaintiffs or petitioners should be filed on Court-provided forms”). If the amended

complaint is handwritten, the writing must be legible.

In the “Caption” section of the Court-provided form, plaintiff should clearly name each

and every party he is intending to sue. See Fed. R. Civ. P. 10(a) (“The title of the complaint must

name all the parties”). If there is not enough room in the caption, plaintiff may add additional

sheets of paper. However, all the defendants must be clearly listed.

Plaintiff should put his case number in the appropriate location on the upper right-hand

section of the first page. He should then 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).

The amended complaint should only include claims that arise out of the same transaction

or occurrence. In other words, plaintiff should only include claims that are related to each other.

See Fed. R. Civ. P. 20(a)(2). Alternatively, plaintiff may choose a single defendant and set forth

as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a).

In structuring his amended complaint, plaintiff should begin by writing the defendant’s

name. In separate, numbered paragraphs under that name, plaintiff should write a short and plain

statement of the factual allegations supporting his claim against that specific defendant. If plaintiff

is suing more than one defendant, he should follow the same procedure for each defendant.

Plaintiff must specify whether he intends to sue each defendant in an official capacity, an

individual capacity, or both. The failure to sue a defendant in his or her individual capacity may

result in the dismissal of that defendant.

If plaintiff is suing 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 42 U.S.C. § 1983 liability “requires a

causal link to, and direct responsibility for, the deprivation of rights”). Put another way, there must

be allegations against each specific individual demonstrating how that person violated plaintiff’s

rights. Furthermore, the Court emphasizes that the “Statement of Claim” requires more than “labels

and conclusions or a formulaic recitation of the elements of a cause of action.” See Neubauer v.

FedEx Corp., 849 F.3d 400, 404 (8th Cir. 2017).

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 an amended complaint completely replaces the

original complaint. This means that claims that are not re-alleged in the amended complaint will

be deemed abandoned. See In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928

(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 amended complaint, the Court will review it pursuant to 28 U.S.C. §

1915. Plaintiff’s failure to make specific factual allegations against a defendant will result in the

dismissal of that defendant. If plaintiff fails to file an amended complaint on a Court-provided

form within thirty days in accordance with the instructions set forth herein, the Court will dismiss

this action without prejudice and without further notice to plaintiff.

C. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. (Docket No. 4). In civil cases, a pro se

litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721

F.3d 940, 942 (8th Cir. 2013). 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 pro se litigant to investigate the facts, the existence of conflicting

testimony, and the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cty.

Jail, 437 F.3d 791, 794 (8th Cir. 2006).

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

warranted at this time. Specifically, as discussed above, the Court has determined that plaintiff’s

complaint is deficient, and has ordered him to submit an amended complaint. The Court will

entertain future motions for appointment of counsel as the case progresses, if appropriate.

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 $13.72

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 (Docket

No. 4) is DENIED at this time.

IT IS FURTHER ORDERED that the Clerk of Court shall send to plaintiff a copy of the

Court’s prisoner civil rights complaint form.

IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on the Court-

provided form within thirty (30) days of the date of this order, in accordance with the instructions

set forth above.

IT IS FURTHER ORDERED that if plaintiff fails to file an amended complaint on the

Court-provided form within thirty (30) days of the date of this order, in accordance with the

instructions set forth above, the Court will dismiss this action without prejudice and without further

notice.

IT IS FURTHER ORDERED that upon the filing of plaintiff's amended complaint, the

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

Dated this 28th day of June, 2022.

Lonny q ff

STEPHEN N. LIMBAUGH, JR. _

SENIOR UNITED STATES DISTRICT JUDGE

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