# Bailey v. Jean

> District Court, E.D. Missouri · November 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10237913

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** November 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10237913

## How later opinions describe it (automated extraction)

- 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”
- explaining that municipal liability may attach if a constitutional violation “resulted from (1) an official municipal policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or supervise”
- stating that a pretrial detainee has the same rights to medical care under the due process clause as an inmate has under the Eighth Amendment
- stating that 42 U.S.C. § 1983 liability “requires a causal link to, and direct responsibility for, the deprivation of rights”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

PHILLIP BAILEY, )
)
Plaintiff, )
)
v. ) No. 1:22-cv-00112-JAR
)
MARINA JEAN, et al., )
)
Defendants. )

MEMORANDUM AND ORDER
This matter comes before the Court on the motion of plaintiff Phillip Bailey 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 $1.00. 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.
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) (explaining that 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, malicious, or fails to state a claim upon which relief can be granted. To
state a claim, 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 Pulaski County
Detention Center in Ullin, Illinois. He has filed a civil action that has been construed as a prisoner
civil rights complaint under 42 U.S.C. § 1983,1 naming Dunklin County and Nurse Practitioner

1 The Court notes that in his complaint, plaintiff asserts that federal question jurisdiction is not applicable, and that he
is asserting diversity of citizenship jurisdiction. (Docket No. 1 at 5). However, plaintiff alleges that both he and
defendants are Missouri citizens. (Docket No. 1 at 4-5). As such, diversity jurisdiction is not present. See Ryan ex rel.
Ryan v. Schneider Nat. Carriers, Inc., 263 F.3d 816, 819 (8th Cir. 2001) (“Under 28 U.S.C. § 1332(a), district courts
have original diversity jurisdiction over civil actions when the matter in controversy exceeds $75,000, without
considering interest and costs, and when the citizenship of each plaintiff is different from the citizenship of each
defendant”); and OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007) (“Complete diversity of
citizenship exists where no defendant holds citizenship in the same state where any plaintiff holds citizenship”). Rather
than a diversity action, it appears that plaintiff is trying to bring a 42 U.S.C. § 1983 claim, as he is alleging a lack of
medical care while an inmate at the Dunklin County Jail.
Marina Jean as defendants. (Docket No. 1 at 1). The complaint contains allegations of deliberate
indifference to plaintiff’s medical needs, while he was an inmate at the Dunklin County Jail in
Kennett, Missouri. (Docket No. 1 at 6).
In the “Statement of Claim,” plaintiff asserts that he “caught” a staph infection, and that

“after many medical requests and [grievances],” he “was looked at by the nurse and given pain
meds.” Despite the medication, plaintiff states that “it got worse,” and that he “could not get them
to get [him] to the hospital.” He claims that the infection “got so bad that [he] was about to [lose
his] foot,” so he had several inmates “hold [him] down and cut the [wound] open to get the
[infection] out.” Following this, plaintiff contacted the nurse and a correction officer, who “took
[him] to medical and cleaned” his foot. Nevertheless, plaintiff insists that the infection “still wasn’t
all the way out.” Due to his injury, plaintiff states that he later “fell in the shower” and was “left
[lying] in the middle of the pod for [an] hour,” though he does not identify anyone who might have
been responsible for this.
Based on this incident, plaintiff states that he “was in pain for at least three weeks,” and

that even after having his wound cleaned, his “foot still looks black.” (Docket No. 1 at 7). He is
seeking $50,000 for each violation “the judge finds that they did to [him].” (Docket No. 1 at 6).
Discussion
Plaintiff is a self-represented litigant who has filed an action construed as arising under 42
U.S.C. § 1983, alleging that Dunklin County and Nurse Practitioner Jean were deliberately
indifferent to his medical needs. 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 has determined that plaintiff’s complaint is deficient and subject to
dismissal. Rather than dismissing outright, however, the Court will direct plaintiff to file an
amended complaint.
A. Deficiencies in Complaint
Plaintiff’s complaint is deficient and subject to dismissal because he has not stated a 42

U.S.C. § 1983 claim against either defendant. First, with regard to Dunklin County, plaintiff has
not demonstrated that he was injured due to an unconstitutional policy, custom, or failure to train.
See Mick v. Raines, 883 F.3d 1075, 1079 (8th Cir. 2018) (explaining that municipal liability may
attach if a constitutional violation “resulted from (1) an official municipal policy, (2) an unofficial
custom, or (3) a deliberately indifferent failure to train or supervise”).
Second, as to Nurse Practitioner Jean, plaintiff has not established that her actions were
deliberately indifferent. To establish deliberate indifference, plaintiff must prove that he suffered
from an objectively serious medical need, and that prison officials actually knew of and
disregarded that need. See Roberts v. Kopel, 917 F.3d 1039, 1042 (8th Cir. 2019).2 Here, plaintiff
has arguably alleged a serious medical need – a staph infection – but presents no facts

demonstrating that Jean disregarded that need. That is, his facts do not suggest that Jean’s actions
were “so inappropriate as to evidence intentional maltreatment or a refusal to provide essential
care.” See Redmond v. Kosinski, 999 F.3d 1116, 1120 (8th Cir. 2021). Instead, plaintiff’s brief
factual recitation indicates that Jean did provide medical treatment.
For these reasons, plaintiff’s complaint is subject to dismissal for failure to state a claim.
See 28 U.S.C. § 1915(e)(2)(B). Because he is proceeding as a self-represented litigant, the Court

2 Though it is unclear, it appears that plaintiff may have been a pretrial detainee at the time the events in the complaint
occurred. Regardless of his status, the Court notes that plaintiff’s medical claim is analyzed under the Eighth
Amendment’s deliberate indifference standard. See Morris v. Cradduck, 954 F.3d 1055, 1058 (8th Cir. 2020) (stating
that a pretrial detainee has the same rights to medical care under the due process clause as an inmate has under the
Eighth Amendment).
will give plaintiff the opportunity to file an amended complaint according to the instructions set
forth below.
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”). 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 for Appointment of Counsel
Plaintiff has filed a motion to appoint counsel. (Docket No. 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). 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 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. In particular, as discussed above, plaintiff’s complaint is subject to
dismissal, and 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
(Docket No. 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 inmate
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 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 15th day of November, 2022.

ji et A. ROSS
NITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10237913. Public record. Not legal advice.