Jeude v. City of St. Louis, Missouri

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

TODD JEUDE, )

)

Plaintiff, )

)

v. ) Case No. 4:22-cv-989-MTS

)

CITY OF ST. LOUIS, MISSOURI, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Self-represented Plaintiff Todd Jeude brings this action under 42 U.S.C. § 1983 for alleged

violations of his civil rights. The matter is now before the Court upon the motion of Plaintiff for

leave to proceed in forma pauperis, or without prepayment of the required filing fees and costs.

Doc. [2]. Having reviewed the motion and the financial information submitted in support, the

Court will grant the motion and assess an initial partial filing fee of $30. See 28 U.S.C. §

1915(b)(1). Also before this Court is Plaintiff’s motion to amend with an attached proposed

amended complaint. Doc. [19]. As amendment should be freely given, the Court will grant

Plaintiff’s motion to amend and his amended complaint will be docketed in this matter. Based on

an initial review under 28 U.S.C. § 1915(e)(2)(B) of Plaintiff’s amended complaint, the Court will

dismiss this case for failure to state a claim upon which relief may be granted.

Motion to Proceed In Forma Pauperis (Doc. [2]) and Initial Partial Filing Fee

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

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, until

the filing fee is fully paid. Id.

Plaintiff is currently a detainee at the Ste Genevieve County Jail. Doc. [1] at 3. In his

signed and sworn motion to proceed without prepayment of fees and costs, Plaintiff states that he

is not currently employed. Doc. [2-1] at 2. Plaintiff requested, but never received, a certified

prison account statement from the Ste Genevieve County Jail. Id. at 5-6. However, he did submit

his own summary of his prison account statement. Doc. [3]. Plaintiff states that he receives an

average of $250 a month in gifts from family and friends, but in one month he only received $150

and he currently only has $48 in his prison account. Id. at 1. The Court finds that Plaintiff has

insufficient funds in his prison account to pay the entire filing fee. Based on the financial

information Plaintiff has submitted, the Court will assess an initial partial filing fee of $30, which

is twenty percent of Plaintiff’s lowest month’s deposit. 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

prison 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 prison account statement in support of his claim.

Motion to Amend Complaint (Doc. [19])

Self-represented Plaintiff initiated this action on September 21, 2022, by filing his § 1983

complaint. Doc [1]. Over the subsequent three months, Plaintiff filed various discovery motions

which were denied by the Court as premature on December 27, 2022. Doc. [18]. On December

30, 2022, Plaintiff filed a motion to amend his initial complaint with an attached amended

motion to amend and direct the Clerk of Court to docket separately the amended complaint in this

matter. Because the filing of an amended complaint completely replaces the original complaint,

the Court will only review Plaintiff’s amended complaint in this matter. 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”).

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court may dismiss a complaint filed in forma pauperis

if the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or

seeks monetary relief against a defendant who is immune from such relief. When reviewing a

complaint filed by a self-represented person under 28 U.S.C. § 1915, the Court accepts the well-

pleaded facts as true, White v. Clark, 750 F.2d 721, 722 (8th Cir. 1984), and it liberally construes

the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007); 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 the claim to be considered

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

However, even self-represented plaintiffs 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) (refusing to supply additional facts or to

construct a legal theory for the self-represented plaintiff).

To state a claim for relief, a complaint must plead more than “legal conclusions” and

“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory

statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible

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 Amended Complaint

Plaintiff is currently being held at the Ste Genevieve County Jail but the allegations of his

complaint involve a period of detention at the St. Louis City Justice Center (“SLCJC”). Plaintiff

brings this action under 42 U.S.C. § 1983 and Missouri state medical malpractice law, alleging

violations of his civil rights against an indeterminate number of officials employed at the SLCJC.1

Doc. [19-2] at 1-7. The individually named defendants are: (1) Adrian Barnes (superintendent);

(2) Dr. Brenda Mallard (medical administrator); (3) Captain Unknown Hall (supervisor and

commander); (4) Unknown Barnes (correctional officer);2 and (5) Unknown Smith (correctional

officer). Id. at 5-7. Plaintiff names defendants CO Barnes and Smith in their individual capacities

only, and defendants Barnes, Dr. Mallard, and Hall in both their official and individual capacities.

Id. Plaintiff also names an indeterminate number of Doe defendants in their individual capacities.

Id. at 3, 7.

Plaintiff describes himself both as a “pre-trial detainee on a USMS hold” and a “convicted

felon serving a 7-year sentence out of the Circuit County of St. Louis County Missouri [expiring]

… 10-8-23.” Id. at 5, 9. Plaintiff was booked into SLCJC on July 6, 2022, “on a Missouri Board

of Probation and Parole [] hold,” after being injured in an ATV motorcycle accident two days

1 Plaintiff states in his motion to amend that he is “voluntarily withdrawing 2 prior defendants” – one of which is the

City of St. Louis but Plaintiff does not name the other withdrawn defendant. Docs. [19-1] at 2, [19-3] at 1.

2 Hereinafter, superintendent Adrian Barnes will be referred to as “Barnes” and correctional officer Unknown

Barnes will be referred to as “CO Barnes.” This appears to be the word choice used by Plaintiff in his amended

complaint.

at St. Clare Hospital for injuries that included shoulder dislocation, road rash, pulled calf muscle,

and injuries to his head and neck. Id. at 4. Plaintiff was also examined at South City Hospital in

a “fit for confinement” exam prior to booking at the SLCJC. Id. at 9, 23. At South City, Plaintiff’s

accident wounds were cleaned and re-dressed, a sling was ordered for his arm, and he was directed

to take over-the-counter medications for pain. Id. at 10. Upon subsequent medical intake at

SLCJC, Plaintiff’s arm sling was confiscated because SLCJC “doesn’t allow arm slings.” Id. at

11-12. Upon confiscation of the sling, Plaintiff requested to see a “doctor on an emergency basis”

or to be taken to the infirmary, but his requests were denied due to a lack of “life threatening

impairment.” Id. at 11.

Plaintiff states that he was held at SLCJC for eight (8) days in a “‘drunk tank’ or ‘fish tank’

style pen[]” that was approximately twenty by eight feet with metal benches on each wall and a

toilet at one end. Id. at 13. He had no mattress, bedding, clothing, or hygiene items; however,

Plaintiff admits to showering twice while held in the tank. Id. at 13, 15, 19. Plaintiff repeatedly

requested a nurse soon after being put in the tank, but he was told to wait. Id. at 14. The “med

cart nurse” came by the first evening and noted Plaintiff’s complaints but did not provide pain

medicine. Plaintiff continued to request medical assistance due to pain over the following days.

He was told to wait. Id. at 15. As the cell became crowded, especially on Saturday night, Plaintiff

made multiple requests to be moved but was denied. Id. at 16-17.

Four days after intake, Plaintiff complained to a nurse about his arm wound and ear pain.

Id. at 17. Plaintiff was brought to medical that day. Id. at 18. His arm wounds were cleaned and

re-bandaged, but the nurse would not look into Plaintiff’s ear pain because she said that he was

3 In a supplemental filing, Plaintiff states that he “entered the hospital under a false name … to gain treatment.”

Doc. [6] at 4.

out a medical service request regarding his ear. Id. at 19. When Plaintiff asked to see a doctor on

an “emergency basis,” he was told that he did not have a serious concern. Id. When Plaintiff

repeatedly asked to go to the infirmary, he was told that it was full of “detox inmates and drunks.”

Id. at 20.

On his eighth day at SLCJC, Plaintiff saw defendant Dr. Mallard in medical. Id. at 23. He

complained about the confiscation of his sling and that he had only received two dressing changes

on his arm wounds since intake. Id. at 24. Dr. Mallard examined Plaintiff’s injuries. Plaintiff

received an injectable pain reliever and anti-inflammatory. Id. at 25. Dr. Mallard ordered and

prepared an arm sling. Id. at 26. Upon examination of Plaintiff’s right ear, Dr. Mallard noted an

obstruction in the ear canal and swelling. Id. at 27. Dr. Mallard used pliers to remove an “ear

bud” from Plaintiff’s ear that he “had been wearing connected to [his] I-pod at the time of the

motorcycle crash.” Id. at 28. Dr. Mallard informed Plaintiff that his ear was infected. She

ordered antibiotic ear drops for him and told him to show the med cart nurse his ear every time she

came by. Plaintiff was also given over-the-counter pain medications. Id.

After Dr. Mallard denied Plaintiff’s request to remain in the infirmary, an unnamed female

correctional officer escorted Plaintiff back to the tank. Id. at 29. On the way back they passed

some “suicide observation” cells and the correctional officer commented to Plaintiff about “how

comfortable they looked with their blankets and smock and a place to lay down.” She then

instructed Plaintiff “not to tell her [that he] was suicidal.” Id. Sometime during the “next shift,”

Plaintiff alerted correctional officer Jones that he was suicidal. Id. at 29-30. Plaintiff was strip

searched and his sling was confiscated again. Plaintiff alleges that Jones was verbally abusive

towards him. Id. at 30. Plaintiff was issued a smock, blanket, and shoes. He was taken to a single

observation cell. Id. at 31. Plaintiff had to wait two hours to use a restroom and get some water.

Jail. Id.

Plaintiff alleges that SLCJC medical employee defendants failed to provide adequate

medical care, delayed his medical treatment, and interfered with his physician-ordered treatment,

constituting deliberate indifference. Id. at 4. He lists three specific claims for relief in his

complaint: (1) a § 1983 claim for deliberate indifference to his medical needs against Hall, CO

Barnes, Smith, and other unnamed defendants, in their individual capacities; (2) a Monell4 claim

against Barnes, Dr. Mallard, and Hall in their official and individual capacities; and (3) a medical

malpractice claim under Missouri statute § 538.2105 against Dr. Mallard and unnamed nurse

defendants. Id. at 38-52.

For relief, Plaintiff seeks declaratory relief and damages. Id. at 39-40, 48, 53.

Plaintiff’s Relevant Criminal Background

As Plaintiff alluded to in his complaint, there was a question of custody that led to him

being held in the SLCJC “drunk tank” for as long as he was. An independent review of Plaintiff’s

criminal litigation history provides some clarification. Before this Court, Plaintiff Todd Jeude,

also known as Todd Juede, pleaded guilty to three drug-related offenses on May 27, 2009. U.S. v.

Juede, No. 4:09-cr-11-JCH-1, Doc. [44] (E.D. Mo. Jan, 8, 2009). On September 25, 2009, Plaintiff

was sentenced to a total term of 86 months, followed by a four (4) year period of supervised release.

Id. at Doc. [65]. After Plaintiff was released from incarceration, he was arrested for multiple

4 Plaintiff is referring to Monell v. Dep’t. of Soc. Servs., 436 U.S. 658 (1978) – a case in which the United States

Supreme Court ruled that a municipality or local governing body can be held directly liable under § 1983. Although

Plaintiff names no municipality or local governing body as a defendant, he seems to be arguing a Monell claim

based on the fact that the official capacity claims against defendants Barnes, Dr. Mallard, and Hall are the “same as

holding a municipality liable” because “the real party in interest in an official capacity claim is the gov’t entity and

not the named individual.” Doc. [19-2] at 40 (citing Robb v. Hungerbeeler, 370 F.3d 735, 739 (8th Cir. 2004)).

5 Missouri Revised Statute § 538.210 states “[a] statutory cause of action for damages against a health care provider

for personal injury or death arising out of the rendering of or failure to render health care services.” Mo. Rev. Stat. §

538.210.1.

remanded to custody for a period of 12 months and one (1) day. Id. at Doc. [113].

Meanwhile in Missouri state court, Plaintiff was charged in November 2016 with four

criminal counts involving drugs, motor vehicle tampering, and unlawful weapon possession. State

v. Jeude, No. 16SL-CR07616-01 (22nd Jud. Cir. 2016). He pleaded guilty to the charges of

unlawful possession of a weapon and tampering in May of 2017. He received 7-year sentences on

each count, to run concurrent with each other “and any federal sentences.” Sometime around May

2021, Plaintiff was released on parole.

In April 2022, Plaintiff was declared an escape from the halfway house where he had been

placed and as a result, a federal indictment charged him with escape from custody. U.S. v. Jeude,

No. 4:22-cr-239-RWS-1 (E.D. Mo. Apr. 27, 2022). Around that same time, Plaintiff was declared

an absconder on his state court charges as well, and a warrant was issued. As mentioned above,

on July 6, 2022, Plaintiff was arrested by the St. Louis City police on charges of tampering,

possession of a controlled substance, and possession of drug paraphernalia. It appears that there

was some confusion as to who would take custody of Plaintiff after his arrest, given he had state

and federal charges pending. Eventually, the USMS took custody of Plaintiff on July 14, 2022,

and he appeared before this Court that day for an initial appearance. Id. at Doc. [7].

Discussion

The United States Supreme Court has determined that prisoners have a protected liberty

interest in avoiding conditions of confinement that impose an “atypical and significant hardship

on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,

484 (1995). Having carefully reviewed and liberally construed Plaintiff’s allegations, the Court

finds that Plaintiff fails to demonstrate that any of the named defendants behaved with deliberate

indifference to his health or safety. Based on prevailing Eighth Circuit precedent, Plaintiff’s

below, this case will be dismissed under 28 U.S.C. § 1915(e)(2)(B).

I. Deliberately Indifferent Medical Care

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which was designed to provide a

“broad remedy for violations of federally protected civil rights.” Monell v. Dep’t of Soc. Servs,

436 U.S. 658, 685 (1978). One such federally protected right is the Eighth Amendment’s

prohibition on cruel and unusual punishment, which protects prisoners from deliberate indifference

to serious medical needs. Luckert v. Dodge Cnty., 684 F.3d 808, 817 (8th Cir. 2012). To prevail

on a deliberate indifference claim, a prisoner plaintiff must demonstrate that he suffered from an

objectively serious medical need, and that defendants actually knew of, and disregarded that need.

Roberts v. Kopel, 917 F.3d 1039, 1042 (8th Cir. 2019); Dulany v. Carnahan, 132 F.3d 1234, 1239

(8th Cir. 1997). A “serious medical need” is “one that has been diagnosed by a physician as

requiring treatment, or one that is so obvious that even a layperson would easily recognize the

necessity for a doctor’s attention.” Holden v. Hirner, 663 F.3d 336, 342 (8th Cir. 2011) (quoted

case omitted).

“[D]eliberate indifference requires a highly culpable state of mind approaching actual

intent.” Kulkay v. Roy, 847 F.3d 637, 643 (8th Cir. 2017) (quoted case omitted). An inmate must

demonstrate that a prison health care provider’s actions were “so inappropriate as to evidence

intentional maltreatment or a refusal to provide essential care.” Jackson v. Buckman, 756 F.3d

1060, 1066 (8th Cir. 2014) (quoted case omitted). Allegations of mere negligence in giving or

failing to supply medical treatment will not suffice. Estelle v. Gamble, 429 U.S. 97, 106 (1976).

Nor will a prisoner’s “mere disagreement with treatment decisions” support a claim of deliberate

indifference. Jones v. Minn. Dep’t of Corr., 512 F.3d 478, 482 (8th Cir. 2008).

deny or delay access to medical care. Estelle, 429 U.S. at 104-05. When a delay in treatment is

alleged to have violated an inmate’s constitutional rights, a court measures the objective severity

of the deprivation “by reference to the effect of the delay in treatment.” Jackson v. Riebold, 815

F.3d 1114, 1119 (8th Cir. 2016) (internal quotation marks omitted) (quoting Laughlin v. Schriro,

430 F.3d 927, 929 (8th Cir. 2005)). To support a claim based on a delay in treatment, a plaintiff

must present “verifying medical evidence” showing that the delay in treatment had detrimental

effects. Id. at 1119-20; see also Holden, 663 F.3d at 342 (“[a] prisoner alleging a delay in treatment

must present verifying medical evidence that . . . [the] delays adversely affected his prognosis.”).

In this case, Plaintiff alleges that Hall, CO Barnes, Smith, and an indeterminate number of

Doe defendants failed to provide him with adequate medical care, delayed his medical treatment,

and interfered with his physician-ordered treatment, constituting deliberate indifference.

According to Plaintiff, medical treatment was denied for eight (8)6 days. However, Plaintiff admits

that he received two dressing changes for the wound on his arm during that 8-day period. He also

saw and talked with a med cart nurse multiple times during that period.

“The Constitution does not require jailers to handle every medical complaint as quickly as

each inmate might wish.” Jenkins v. Cnty. of Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2009).

The allegations of the amended complaint demonstrate that Plaintiff’s medical condition was

monitored and reviewed by numerous Defendants over the 8-day period. Plaintiff received a fit-

for-confinement exam at a local hospital before intake. He had multiple dressing changes and saw

6 Plaintiff states differing lengths of time in his amended complaint. At one point he alleges a ten (10) day denial of

care, Doc. [19-2] at 39; but he also states that he was detained at SLCJC on July 6th (after a hospital fit-for-confinement

exam) and he saw Dr. Mallard for care on July 14th. Id. at 9, 23. Liberally construing the amended complaint, it

appears the maximum period of alleged denial of care would be eight (8) days.

maltreatment or a refusal to provide essential care.

Plaintiff’s claim of a deliberately indifferent delay in medical treatment also fails. Plaintiff

seems to assert a delay involving both a failure to discover and remove the obstruction in his ear

canal and involving the confiscation of his arm sling. Plaintiff’s injuries from the motorcycle

accident were examined at two hospitals before he was detained at SLCJC. Neither of those

examinations revealed an ear obstruction. Defendants at SLCJC had no actual knowledge of a risk

to Plaintiff’s health from a potential ear obstruction. Furthermore, Plaintiff alleges no detrimental

effect from the delay in discovering the ear obstruction. As stated above, allegations of mere

negligence in giving or failing to supply medical treatment are not enough to state a claim of

deliberate indifference. Estelle, 429 U.S. at 106.

Plaintiff also states that his arm sling was confiscated by SLCJC employees for safety

reasons multiple times, but that he was eventually issued an arm sling once he was moved to Ste

Genevieve Jail. Plaintiff’s sling was confiscated before he was placed in a crowded holding cell

and before he was placed in a suicide observation cell. Plaintiff alleges the confiscations interfered

with his physician-ordered treatment.

A prison regulation infringing on an inmate’s constitutional rights is valid so long as it is

reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 89 (1987).

Deference should be given to the decisions of prison administrators, especially when those

decisions deal with issues of prison safety and security. Id.; see also Spence v. Farrier, 807 F.2d

753, 755 (8th Cir. 1986) (stating that “prison administrators are accorded ‘wide-ranging deference

in the adoption and execution of policies and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional security.’” (quoting Bell v. Wolfish, 441

U.S. 520, 547 (1979))).

observation. Furthermore, Plaintiff does not allege any detrimental effect from a delay in receiving

his sling. When Dr. Mallard examined him multiple days after the sling confiscation, she found

no shoulder dislocation. Plaintiff alleges no aggravation of his medical condition or long-term

side effect resulting from the lack of sling.

Finally, a delay as brief and as non-detrimental as Plaintiff alleges does not state a claim

for deliberate indifference to his serious medical needs. See Johnson v. Hamilton, 452 F.3d 967,

973 (8th Cir. 2006) (concluding that a one-month delay in treating a fractured finger did not rise

to a constitutional violation); Givens v. Jones, 900 F.2d 1229, 1233 (8th Cir. 1990) (finding that a

prisoner’s claim for delay of one month between complaint of leg pain and visit with doctor was

insufficient to state a constitutional claim absent allegations the condition required immediate

attention or the delay in treatment aggravated the condition).

“[T]he failure to treat a medical condition does not constitute punishment within the

meaning of the Eighth Amendment unless prison officials knew that the condition created an

excessive risk to the inmate’s health and then failed to act on that knowledge.” Long v. Nix, 86

F.3d 761, 765 (8th Cir. 1996). There is no evidence that defendants knew of and deliberately

disregarded a known risk to Plaintiff’s health. The allegations of the amended complaint are

insufficient to support a deliberate indifference medical care claim.

II. Conditions of Confinement Claim

Although not specifically stated in his legal claims section of his amended complaint,

Plaintiff also appears to be asserting a conditions of confinement claim. Plaintiff alleges an

approximate 8-day period without bedding, a change of clothing, and hygiene items. However, he

also admits that he was able to shower twice during the 8-day period.

must demonstrate (1) that the alleged deprivation was “objectively, sufficiently serious” to result

in the “denial of the minimal civilized measure of life’s necessities,” and (2) that the defendant

whose act or omission caused the alleged constitutional deprivation behaved with “deliberate

indifference to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal

quotations and citations omitted); Revels v. Vincenz, 382 F.3d 870, 875 (8th Cir. 2004). With

respect to the “civilized measure of life’s necessities,” prison officials are required to ensure that

inmates receive adequate clothing, food, shelter, and medical care. Simmons v. Cook, 154 F.3d

805, 807 (8th Cir. 1998) (citing Farmer, 511 U.S. at 832).

Pursuant to the Eighth Amendment, prisoners are entitled to the basic necessities of human

life and to humane treatment. Goff v. Menke, 672 F.2d 702, 705 (8th Cir. 1982). Prison “inmates

are entitled to reasonably adequate sanitation, personal hygiene, and laundry privileges,

particularly over a lengthy course of time.” Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989).

As such, “a long-term, repeated deprivation of adequate hygiene supplies violates inmates’ Eighth

Amendment rights.” Myers v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996) (citing Howard, 887

F.2d at 137 (finding a two-year internment in a cell covered in human waste, with a torn and dirty

mattress, lack of proper cleaning supplies, and denial of laundry and barber privileges violated the

Eighth Amendment)). However, there is no absolute Eight Amendment right not to be put in a

cell without clothing or bedding. Williams v. Delo, 49 F.3d 442, 444-46 (8th Cir. 1995) (finding

no Eighth Amendment violation where prisoner held in strip cell without clothing, running water,

mattress, or hygiene supplies for four days). The length of time an inmate spends in such a

condition is a factor in determining whether there has been a constitutional violation.

Although Plaintiff requested a cell change multiple times, it is well established that Plaintiff

has no constitutional right to his choice of cell. Lyon v. Farrier, 727 F.2d 766, 768 (8th Cir. 1984).

above, medical care. He does not allege his clothing was inadequate or that not being able to

change resulted in any injury. Also, he was able to shower multiple times. This short period of

time, under the alleged conditions, did not result in a denial of the minimal civilized measure of

life’s necessities. See O’Leary v. Iowa State Men’s Reformatory, 79 F.3d 82, 83-84 (8th Cir. 1996)

(finding that several days without underwear, blankets, mattress, exercise or visitation did not

violate the Eighth Amendment); see also Scott v. Carpenter, 24 F. App’x 645, 647-48 (8th Cir.

2001) (finding no denial of “minimal civilized measure of life’s necessities” when prisoner was

able to shower only fifteen times in six months including a twenty-eight-day period without a

shower). Plaintiff’s allegations fail to allege a sufficient Eighth Amendment conditions of

confinement claim and will be dismissed.

III. Other Claims

First, to the extent that Plaintiff is attempting to assert a Monell claim even though he names

no municipality or local governing body as a defendant, such a claim fails. In Monell v.

Department of Social Services, 436 U.S. 658, 690 (1978), the Supreme Court held that a

municipality or local governing body can be directly liable under § 1983. Such liability may attach

if the constitutional violation “resulted from (1) an official municipal policy, (2) an unofficial

custom, or (3) a deliberately indifferent failure to train or supervise.” Mick v. Raines, 883 F.3d

1075, 1079 (8th Cir. 2018).

Here, Plaintiff alleges no official policy, unofficial custom, or deliberately indifferent

failure to train or supervise. In addition, because Plaintiff fails to state a claim of a constitutional

violation against any named individual defendant, his § 1983 Monell claim also fails. See Malone

v. Hinman, 847 F.3d 949, 955 (8th Cir. 2017) (finding no violation by the defendant officer of

Plaintiff’s rights, “there can be no § 1983 or Monell liability on the part of … the City.”); Sitzes v.

claims “could not be sustained absent an underlying constitutional violation by the officer”).

Second, Plaintiff also complains about verbal abuse and name calling by defendants at

SLCJC. This is not enough to state a claim under § 1983. The Constitution does not guard against

all intrusions on one’s peace of mind. King v. Olmsted Cnty., 117 F.3d 1065, 1067 (8th Cir. 1997).

“Generally, mere verbal threats made by a state-actor do not constitute a § 1983 claim.” Hopson

v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992); see also McDowell v. Jones, 990 F.2d 433,

434 (8th Cir. 1993) (“Verbal threats and name calling usually are not actionable under § 1983”).

In other words, fear or emotional injury resulting “solely from verbal harassment or idle threats is

generally not sufficient to constitute an invasion of an identified liberty interest.” King, 117 F.3d

at 1067 (citations omitted).

Here, Plaintiff alleges a few instances of a verbal threat, with no allegations of brutality,

wanton cruelty, or coercive pressure. Such allegations do not state a claim of constitutional

dimension. See Williams v. Harness, 221 F.3d 1346 (8th Cir. 2000) (citing McDowell v. Jones,

990 F.2d 433, 434 (8th Cir.1993) (inmate’s claims of general harassment and of verbal harassment

were not actionable under § 1983)); McDowell, 990 F.2d at 434 (affirming district court dismissal

of allegations of general harassment and of verbal harassment for failure to state a claim).

Finally, Plaintiff’s claims of medical malpractice under Missouri state law will also be

dismissed. As discussed above, such claims fail to state a § 1983 claims. See Kulkay, 847 F.3d at

643 (finding that mere negligence or inadvertence does not rise to the level of deliberate

indifference); Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008) (stating that medical

malpractice is not actionable under the Eighth Amendment); McRaven v. Sanders, 577 F.3d 974,

982 (8th Cir. 2009) (“Negligent misdiagnosis does not create a cognizable claim under § 1983”).

In addition, because Plaintiff’s federal claims will be dismissed, all remaining pendent state claims

715, 726 (1966) (if federal claims are dismissed before trial, remaining state claims should also be

dismissed); Hassett v. Lemay Bank & Trust Co., 851 F.2d 1127, 1130 (8th Cir. 1988) (where

federal claims have been dismissed, district courts may decline jurisdiction over pendent state

claims as a matter of discretion).

Conclusion

The allegations of Plaintiff’s amended complaint fail to state a § 1983 claim of cruel and

unusual punishment under the Eighth Amendment for both deliberately indifferent medical care

and denial of the minimal necessities of life. Furthermore, this Court declines to exercise

jurisdiction over any remaining state claims. As such, this case will be dismissed under 28 U.S.C.

§ 1915(e)(2)(B) for failure to state a claim upon which relief may be granted.

Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s motion for leave to proceed in forma

pauperis, Doc. [2], is GRANTED. See 28 U.S.C. § 1915(a)(1).

IT IS FURTHER ORDERED that the Plaintiff shall pay an initial filing fee of $30.00

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) that the remittance is for an original proceeding.

IT IS FURTHER ORDERED that Plaintiff’s motion to amend, Doc [19], is GRANTED.

The Clerk of Court is directed to docket the amended complaint, Doc. [19-2], separately in this

matter.

IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to

issue upon the complaint as to all named defendants because the complaint fails to state a claim

upon which relief can be granted. Plaintiff's claims against all defendants are DISMISSED

without prejudice. See 28 U.S.C. § 1915(e)(2)(B).

IT IS FURTHER ORDERED that Plaintiff's motion for appointment of counsel, Doc.

[4], is DENIED as moot.

IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in

good faith.

An Order of Dismissal will accompany this Memorandum and Order,

Dated this 27th day of January, 2023. /

| oo

fle

UNITED STATES DISTRICT JUDGE

-17-