Barnett v. Short

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

DEWEY AUSTIN BARNETT, II, )

)

Plaintiff, )

)

v. ) No. 4:22-cv-00708-SEP

)

BRENDA SHORT, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Before the Court is the motion of Plaintiff Dewey Austin Barnett, II, for leave to

commence this civil action without prepayment of the required filing fee. Doc. [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 $1.00. See 28 U.S.C. § 1915(b)(1).

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% 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% 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 the 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.

Plaintiff has not submitted an inmate account statement as required by 28 U.S.C.

§ 1915(a)(2). Nevertheless, having reviewed the information contained in the motion, the Court

will require Plaintiff to pay an initial partial filing fee of $1.00. See Henderson v. Norris, 129

F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the court with a certified

copy of his inmate account statement, the court should assess an amount “that is reasonable,

based on whatever information the court has about the prisoner’s finances”). If Plaintiff is

unable to pay the initial partial filing fee, he must submit a copy of his inmate account statement

in support of his claim.

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 or malicious, or if it 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 on its 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) (court 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 . . . then the district 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 pro se complaints

are required to “allege facts, which if true, state a claim 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) (federal courts not required to “assume facts that are not alleged, just because an additional

factual allegation would have formed a stronger complaint”). And “procedural rules in ordinary

civil litigation” need not 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 Eastern

Reception, Diagnostic and Correctional Center. At all relevant times, however, he was an inmate

at the Jefferson County Jail in Hillsboro, Missouri. Plaintiff brings this civil action pursuant to

42 U.S.C. § 1983, naming Jail Administrator Brenda Short, Correctional Officer Christopher

Rulo, and the Jefferson County Jail as defendants. Doc. [1] at 2-3. Jail Administrator Short and

Officer Rulo are sued in their official capacities only. The complaint contains unrelated claims

regarding sexual harassment, the denial of legal research material, the denial of religious

material, failure to protect, and tampering with legal mail.

In the “Statement of Claim,” Plaintiff first accuses Officer Rulo of sexually harassing

him. Doc. [1] at 13. More particularly, he states that on March 12, 2021, Officer Rulo “exploited

his position” by strip-searching Plaintiff.

Second, on October 9, 2020, Plaintiff asserts that his right “to access the courts and

[have] access to adequate legal materials” was violated when he was not allowed a copy of

Black’s Law Dictionary. Doc. [1] at 14. He explains that the jail did not have a copy, so he had

it “sent directly from the [manufacturer].” Doc. [1] at 14-15. However, Plaintiff claims that Jail

Administrator Short “overstepped her authority” by denying him the right to have it, even though

“[h]aving legal materials sent directly from the [manufacturer] is a well-established policy

ordained by other jails.” Doc. [1] at 14.

Third, on March 12, 2021, Plaintiff states that Jail Administrator Short “willfully denied”

his First Amendment right to practice his religion by denying his request to have a Bible in

administrative segregation. Doc. [1] at 15. And he claims that when he filed a grievance, Short

told him that having a Bible “was nothing more than a privilege.” Doc. [1] at 16.

Fourth, Plaintiff states that he was assaulted by a “declared” enemy. By way of

explanation, he notes that on March 17, 2021, he “filed an electronic grievance declaring [an

enemy] by name and cell number.” On March 18, 2021, Jail Administrator Short replied that

there was nobody in the jail with the name Plaintiff provided. Plaintiff acknowledges that he

provided the wrong name for his purported enemy but states that he provided the correct cell

number. Doc. [1] at 17. Despite having that information, he alleges, Short failed to take

“reasonable measures to protect [his] safety from other detainees by moving [him] from

[potentially] serious danger,” and on December 15, 2021, his enemy attacked him, injuring him.

Finally, Plaintiff alleges that “Jefferson County Jail and its employees knowingly

sabotaged [his] federal civil suit by” tampering with mail sent by the Court,” resulting in the

dismissal of his prior federal case. Doc. [1] at 18.

As a result of the alleged violations of his rights, Plaintiff claims that he was injured in an

assault by another inmate. Doc. [1] at 5. He also alleges “mental distress, legal injury,

depression, loss of sleep, extended incarceration, [and] constant discomfort due to [Officer]

Rulo’s lingering presence.” Id. Plaintiff requests that an “[e]xtensive legal library” be placed in

the jail; that he be allowed to receive legal material sent to him at the jail; that Jail Administrator

Short and Officer Rulo be “removed from their positions immediately”; and that there be an

improvement in “living conditions for all detainees.” Doc. [1] at 7. He also seeks $20 million in

damages.

Attached to the complaint are a number of exhibits, including a “Memorandum for 1983

Civil Rights Complaint,” a “Consent to [Endorsing] Legal Instruments,” an affidavit authored by

Plaintiff, grievances, grievance responses, incident reports, a letter to Internal Affairs, the

dismissal order from Plaintiff’s prior federal case, and a letter from the Jefferson County

Sheriff’s Office showing Plaintiff’s incarceration dates. The Court has reviewed these exhibits

and will treat them as part of the pleadings.1

DISCUSSION

Plaintiff is a self-represented litigant who brings this 42 U.S.C. § 1983 action alleging

various constitutional violations while he was an inmate at the Jefferson County Jail. Because he

is proceeding in forma pauperis, the Court has reviewed his complaint under 28 U.S.C. § 1915.

For the reasons set forth below, the complaint is deficient and subject to dismissal. Plaintiff will

be given the opportunity to file an amended complaint.

I. Deficiencies in Complaint

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

names the Jefferson County Jail as a defendant, but a county jail is not a suable entity. See

Owens v. Scott Cty. Jail, 328 F.3d 1026, 1027 (8th Cir. 2003) (“county jails are not legal entities

amenable to suit”); De La Garza v. Kandiyohi Cty. Jail, 18 Fed. Appx. 436, 437 (8th Cir. 2001)

(affirming district court dismissal of county jail and sheriff’s department as parties because they

are not suable entities).

1 See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is part of the

pleading for all purposes”). See also Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011) (“while

ordinarily, only the facts alleged in the complaint are considered in determining whether it states a claim,

materials attached to the complaint as exhibits may be considered in construing the sufficiency of the

complaint”).

Second, Plaintiff has sued Defendants Short and Rulo in their official capacities only. 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). Here, Defendants’

employer is Jefferson County, but Plaintiff has failed to present any facts showing the county

violated his constitutional rights due to an unconstitutional policy, custom, or failure to train. See

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

challenging an unconstitutional policy or custom, or those based on a theory of inadequate

training, which is an extension of the same”).

Finally, Plaintiff has improperly joined five different claims. He attempts to raise

unrelated issues regarding a strip search, access to the courts, religious exercise, failure to

protect, and access to mail. Rule 20(a)(2) of the Federal Rules of Civil Procedure governs

joinder of defendants, and provides:

Persons . . . may be joined in one action as defendants if: (A) any

right to relief is asserted against them jointly, severally, or in the

alternative with respect to or arising out of the same transaction,

occurrence, or series of transactions or occurrences; and (B) any

question of law or fact common to all defendants will arise in the

action.

Fed. R. Civ. P. 20(a)(2). While joinder of claims, parties, and remedies is encouraged under the

Federal Rules of Civil Procedure, permissive joinder is not warranted in all cases. Mosely v.

General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974). One requirement for joinder is that

the asserted right to relief against each defendant must arise out of the same transaction or

occurrence. Id. A plaintiff cannot join, in a single lawsuit, multiple claims against different

defendants related to events arising out of different transactions or occurrences. In other words,

“Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant

2.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Here, Plaintiff has improperly

attempted to join several unrelated claims.

Rather than dismissing outright, the Court will allow Plaintiff to file an amended

complaint, according to the instructions set forth below. Failure to follow the instructions herein

may result in the dismissal of this action without prejudice.

II. Amendment Instructions

Plaintiff should type or neatly print his second amended complaint on the Court’s

prisoner 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 intends 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, but 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 he signs it.

In the “Statement of Claim” section, Plaintiff should provide a short and plain statement

of the factual allegations supporting his claim. See Fed. R. Civ. P. 8(a). Plaintiff should put each

claim into a numbered paragraph, and each paragraph should be “limited as far as practicable to

a single set of circumstances.” See Fed. R. Civ. P. 10(b).

As discussed above, Plaintiff has joined at least five unrelated claims against two

different individuals in his complaint. The claims do not arise from the same transaction or

occurrence, and they do not share any common basis in law or fact. Plaintiff may not join

unrelated claims in his amended complaint. The amended complaint should include only

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). For example,

Plaintiff cannot bring a claim against Officer Rulo for sexual harassment and also an unrelated

claim against Jail Administrator Short regarding access to legal material. However, if Plaintiff

has multiple claims against a single defendant, he may name that person 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 must allege facts

demonstrating the defendant’s personal responsibility for harming him. See Madewell v.

Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (§ 1983 liability “requires a causal link to, and

direct responsibility for, the deprivation of 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.

Plaintiff must provide the role of each named defendant, 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) (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. 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.

III. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. Doc. [3]. 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, the Court notes that Plaintiff’s complaint is deficient, and

that he has been ordered to file 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 for leave to proceed in forma

pauperis (Doc. 2) is GRANTED.

IT IS FURTHER ORDERED that Plaintiff must pay an initial partial 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) the statement that the remittance is for

an original proceeding.

IT IS FURTHER ORDERED that Plaintiff’s motion for appointment of counsel (Doc.

[3]) 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 FINALLY ORDERED that upon the filing of Plaintiff’s amended complaint, the

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

Dated this 23™ day of August, 2022.

het LY eg

SARAH E. PITLYK

UNITED STATES DISTRICT JUDGE