# Key v. Spears

> District Court, E.D. Missouri · May 31, 2024

URL: https://www.frixlaw.com/law-library/cases/10240371

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** May 31, 2024
- **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/10240371

## How later opinions describe it (automated extraction)

- stating that “the Due Process Clause prohibits any punishment of a pretrial detainee, be that punishment cruel-and-unusual or not”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MILEK KEY, )
Plaintiff,
y, No. 4:23-CV-1635 JAR

UNKNOWN SPEARS, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter is before the Court on the motion of self-represented plaintiff Milek Key, a
pretrial detainee incarcerated at the St. Louis City Justice Center, for leave to commence this civil
action without prepayment of the required filing fee. [ECF No. 2]. The Court has reviewed the
motion and the financial information provided in support and will grant the motion and assess an
initial partial filing fee of $1.00. Additionally, the Court will issue process on plaintiff's claims for
excessive force against defendants Deputy Commissioner Unknown Spears, Captain Unknown
Wilborn, Lieutenant Unknown Loper, Lieutenant Unknown Bordos and Officer Unknown Randoff
in their individual capacities, as set out in detail below. However, all remaining claims and
defendants will be dismissed from this action. Further, the Court will deny, without prejudice,
plaintiff's motion for appointment of counsel. [ECF No. 3].
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 filing fee. District courts “shall assess and, when funds exist, collect, as a
partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the
greater of’ the average monthly deposits to the prisoner’s account, or the average monthly balance

in the prisoner’s account for the prior six-month period. 28 U.S.C. § 1915(b)(1). After payment of
the initial partial filing fee, the prisoner is required to make monthly payments of 20 percent of the
preceding month’s income credited to his account. 28 U.S.C. § 1915(b)(2). The agency having
custody of the prisoner will forward these monthly payments to the Clerk of Court each time the

. amount in the account exceeds $10, until the filing fee is fully paid. Id.
Plaintiff has not submitted a prison account statement. As a result, 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 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.
Legal Standard on Initial Review
This Court is required to review a complaint filed in forma pauperis to determine whether
summary dismissal is repeel See 28 U.S.C. § 1915(e). This Court must dismiss a complaint
or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which
relief may be granted, or that seeks monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2). An action is frivolous if it “lacks an arguable basis in either law or
fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon which
relief may be granted if it does not plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A claim is facially plausible when the plaintiff “pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Igbal, 556 U.S. 662, 678 (2009). Determining whether a complaint states a plausible claim for
relief is a context-specific task that requires the reviewing court to draw upon judicial experience

and common sense. /d. at 679. The court must assume the veracity of well-pleaded facts but need
not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements.” Jd. at 678 (citing Twombly, 550 U.S. at 555). See also Barton v. Taber,
820 F.3d 958, 964 (8th Cir. 2016) (courts 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.”).
This Court liberally construes complaints filed by laypeople. Estelle v. Gamble, 429 U.S.
97, 106 (1976). “Liberal construction” means that “if the essence of an allegation is discernible,”
the court should “construe the complaint in a way that permits the layperson’s claim to be
considered within the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir.
2015) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even complaints filed
by self-represented persons must allege facts that, if true, state a claim for relief as a matter of law.
Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). Federal courts are not required to
assume facts that are not alleged, Stone, 364 F.3d at 914-15, and are not required to interpret
procedural rules to excuse mistakes by those who proceed without counsel. See McNeil v. United
States, 508 U.S. 106, 113 (1993).
The Complaint
Plaintiff Milek Key is a pretrial detainee at the St. Louis City Justice Center in St. Louis
City, Missouri. [ECF No. 1, p. 2]. He brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights. Plaintiff names the following persons as defendants: Deputy
Commissioner Unknown Spears; Officer Unknown Watson; Officer Unknown Williams; Officer
Unknown Bryant; Officer Unknown Hampton; Lieutenant Unknown Bordos; Lieutenant
Unknown Gayden; Lieutenant Unknown Loper; Captain Unknown Benjiman; Captain Unknown

Wilborn; Unit Manager Unknown Bronk; and Officer Unknown Randoff. Plaintiff brings this
action against defendants in their individual capacities only. Jd. at pp. 2-5. The claims in his lawsuit
relate to a single incident which allegedly occurred at the Justice Center on November 9, 2023.
Plaintiff alleges that on or about November 9, 2023, he was incarcerated at the St. Louis
City Justice Center in 4 Bravo, Cell 12 when defendants Watson, Williams, Bryant, Hampton,
Bordos, Gayden, Loper, Benjiman, Wilborn, Bronk, and Spears came toward his housing unit with
rubber shotguns, pepper spray and police shields.' He states that when defendants “came in 4-B
housing unit,” he “resited [sic]’”* by putting his hands up and then “lay[ing] down on [his] chest.”
[ECF No. 1, p. 6].
Despite plaintiff’s assertions that he did not resist, defendants Deputy Commissioner
Spears and Captain Wilborn fired multiple shots, and plaintiff was struck in the back of his head
with rubber bullets. /d. Plaintiff states that Lieutenant Bordos placed handcuffs and leg restraints
on him at the direction of defendant Spears, and Bordos then walked plaintiff to the bottom tier of
the housing unit. Plaintiff alleges he was not resisting while walking to the bottom tier. Jd.
Plaintiff states that Deputy Commissioner Spears then told Lieutenant Bordos, Lieutenant
Loper and Officer Randoff to throw plaintiff on the ground “forcefully,”? and they purportedly did

Officer Randoff is not mentioned by plaintiff as being in this initial group of defendants.
*Plaintiff states in his complaint that when defendants entered his housing unit, he “resited [sic]” by putting
his hands up and then “lay[ing] down on [his] chest.” The Court is unsure if plaintiff is attempting to use
the word “resisted” in his complaint. Black's Law Dictionary (Fifth Ed.), defines “resisting an officer” as
“obstructing, opposing, and endeavoring to prevent (with or without actual force) a peace officer... in the
lawful discharge of his duty....” Black’s Law Dictionary 1178 (Sth ed. 1979). Plaintiff, however, does not
describe his actions as “resisting” or “opposing” an officer, as he states that he had his hands up when the
officers moved into his cell, laid down on his chest and was shot in the back of the head with rubber bullets.
At this stage of the litigation, in preservice review, the Court must take plaintiff's allegations as true. See,
e.g., Johnson v. Grisham, 827 F. App’x 612 (8th Cir. 2020) (reversing preservice dismissal of excessive
force claim because it was not clear that “the allegations ... have no arguable basis in law or fact”).
3The Court believes that plaintiff meant to use the term “forcibly.”

so. Id. Plaintiff was allegedly knocked unconscious when he was thrown to the ground. Jd. After
this time, an unidentified Lieutenant started dragging plaintiff out of the unit by his handcuffs and
leg restraints. Spears then directed persons plaintiff identifies as “them” to place plaintiff into a
restraint chair in a “rubber room.” Jd. Plaintiff states that he was kept in the chair for twenty-four
(24) hours. Jd. Plaintiff does not indicate what occurred after he was placed in the restraint chair,
such as whether he was allowed breaks from the chair, whether he was checked at specific
intervals, or whether he was kept in the chair continuously.
As a result of the altercation, plaintiff claims that he suffered bruising to his chin, wrist,
and ankle. Jd. He states that it “took defendants more than two weeks to give him medical
attention.” Plaintiff claims in a conclusory manner that he did not get to see a doctor, but he was
given an X-ray and “examined.” Plaintiff does not indicate who examined him or who ordered the
X-ray. Plaintiff also fails to state when the X-ray occurred or what part of his body was X-rayed.
Last, plaintiff asserts in a conclusory manner that although Bordos, Loper and Randoff
acted under the direction of Spears, that Gayden, Benjiman, Wilborn and Bronk watched and failed
to intervene in the unconstitutional misconduct while it was occurring.
Plaintiff seeks monetary damages in this action.
Discussion
Plaintiff, a pretrial detainee currently detained at St. Louis City Justice Center, brings this
action against twelve (12) named employees of the St. Louis City Justice Center for purported
violations of his civil rights pursuant to 42 U.S.C. § 1983. He asserts claims for excessive force
and failure to intervene, as well as deliberate indifference to his serious medical needs, all in
violation of the Fourteenth Amendment. After review of the complaint pursuant to 28 U.S.C. §
1915 for frivolousness, maliciousness and failure to state a claim, the Court will issue process as

to plaintiff's claims for excessive force against defendants Deputy Commissioner Spears and
Captain Wilborn for firing on plaintiff with rubber bullets, as well as against defendants Lieutenant
Bordos, Lieutenant Loper and Officer Randoff for allegedly throwing plaintiff down forcibly and
purportedly knocking him unconscious. However, plaintiff's remaining claims, as well as all
remaining defendants in this case, will be dismissed.
A. The Majority of the Defendants Named in this Action Have No Causal Connection to
Plaintiff’s Claims in this Lawsuit and are Subject to Dismissal
Plaintiff claims in his complaint that defendants Watson, Williams, Bryant, Hampton,
Gayden, Benjiamin, and Bronk initially came towards his housing unit at the St. Louis City Justice
Center on November 9, 2023, with Deputy Commissioner Spears and Captain Wilborn with rubber
shotguns, pepper spray and police shields. Plaintiff, unfortunately, does not detail the precipitating
event which led to defendants’ actions. However, plaintiff identifies defendants Deputy
Commissioner Spears and Captain Wilborn as being the only two named defendants in this action
who were at his cell and fired upon him during the alleged altercation. Plaintiff also identifies
defendants Lieutenant Bordos, Lieutenant Loper and Officer Randoff as the three defendants who
later engaged in excessive force against him at the direction of Spears.
However, plaintiff does not indicate where defendants Watson, Williams, Bryant,
Hampton, Gayden, Benjiamin, and Bronk were located while Spears and Wilborn were allegedly
shooting at plaintiff or when Bordos, Loper and Randoff were purportedly throwing plaintiff down
and knocking him unconscious. To state a claim under 42 U.S.C. § 1983, a plaintiff must establish:
(1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the
alleged deprivation of that right was committed by a person acting under color of state law. West
v. Atkins, 487 U.S. 42, 48 (1988). Liability in a 42 U.S.C. § 1983 case is personal. See Frederick
v. Motsinger, 873 F.3d 641, 646 (8" Cir. 2017). In other words, “[g]overnment officials are

.

personally liable only for their own misconduct.” S.M. v. Krigbaum, 808 F.3d 335, 340 (8" Cir.
2015). As such, § 1983 liability “requires a causal link to, and direct responsibility for, the.
deprivation of rights.” Mayorga v. Missouri, 442 F.3d 1128, 1132 (8" Cir. 2006) (quoting
Madewell v. Roberts, 909 F.2d 1203, 1208 (8" Cir. 1990)). See also Kohl v. Casson, 5 F.3d 1141,
1149 (8" Cir. 1993) (dismissing plaintiff's excessive bail claims because none of the defendants
set plaintiff's bail, and therefore, “there can be no causal connection between any action on the
part of the defendants and any alleged deprivation” of plaintiff's rights); and Love v. Schoffman,
142 Fed. Appx. 278, 279 (8" Cir. 2003) (affirming pre-service dismissal under 28 U.S.C. § 1915
because the complaint, among other infirmities, “did not specify which of the many named
defendants was responsible for each of the alleged harms”). To that end, a plaintiff must allege
facts connecting the defendant, or defendants, to the challenged action. See Bitzan v. Bartruff, 916
F.3d 716, 717 (8" Cir. 2019).
Because plaintiff has failed to assert that defendants Watson, Williams, Bryant, Hampton,
Gayden, Benjiamin, and Bronk’ were engaged in unconstitutional misconduct themselves during
the altercations described by plaintiff, the Court must dismiss all claims against these defendants.

4As noted supra, plaintiff alleges in his complaint, in an entirely conclusory manner, that defendants
Gayden, Benjiman, Wilborn and Bronk watched and failed to intervene in unconstitutional misconduct
while it was occurring. Plaintiff does not indicate where defendants Gayden, Benjiman and Bronk were
_ located when unconstitutional misconduct was allegedly occurring such that they could have been expected
to intervene. Specifically, he makes no factual assertions as to where each defendant allegedly was when
he was purportedly being subjected to excessive force or why he believes one of the other defendants should
have been expected to intervene in the other officer’s conduct. 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 the 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”). The Court will specifically address the failure to intervene claims, infra.

B. The Court will Issue Process on Plaintiff’s Claims for Excessive Force Against
Defendants Spears, Wilborn, Bordos, Loper and Randoff
Plaintiff alleges several instances of excessive force on November 9, 2023, at the St. Louis
City Justice Center. He asserts that he was subjected to excessive force when he was shot by rubber
bullets by Deputy Commissioner Spears and Captain Wilborn in in 4 Bravo, Cell 12. Afterwards,
he alleges that defendant Spears instructed defendants Bordos, Loper and Randoff to forcibly
throw him on the ground and as a result, he was knocked unconscious. Additionally, he states that □

an unnamed Lieutenant dragged him from the cellblock, while restrained, down the walk, and he
was placed in a restraint chair for 24-hours. The Court will address each instance of purported
excessive force in turn. .
The Due Process Clause protects pretrial detainees from the use of excessive force
amounting to punishment. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015); see also Bell v.
Wolfish, 441 U.S. 520, 535 (1979) (stating that “under the Due Process Clause, a detainee may not
be punished prior to an adjudication of guilt in accordance with due process of law”); and Smith
v. Conway Cty., Ark., 759 F.3d 853, 858 (8th Cir. 2014) (stating that “the Due Process Clause
prohibits any punishment of a pretrial detainee, be that punishment cruel-and-unusual or not”).
Analysis of excessive force claims under the Due Process Clause focuses on whether the
defendant’s purpose in using force was “to injure, punish, or discipline the detainee.” Edwards v.
Byrd, 750 F.3d 728, 732 (8th Cir. 2014). The Fourteenth Amendment gives state pretrial detainees
“rights which are at least as great as the Eighth Amendment protections available to a convicted
prisoner.” Walton v. Dawson, 752 F.3d 1109, 1117 (8th Cir. 2014). Indeed, pretrial detainees are
afforded greater protection than convicted inmates in the sense that the Due Process Clause
prohibits the detainee from being punished. Jd.

Liberally construed, the Court finds that plaintiff has stated plausible claims of excessive
force in violation of the Fourteenth Amendment against defendants Deputy Commissioner Spears
and Captain Wilborn, in their individual capacities, for firing at him with rubber bullets when he
was in 4 Bravo, Cell 12. Plaintiff states in his complaint that at that time, he had his hands up, and
then began to move down to lay on his chest. Moreover, plaintiff states that he was purportedly
shot with the rubber bullets in the back of his head at a time when he was not resisting and allegedly
laying on the ground. See, e.g., Johnson, at 827 F. App’x at 612. Taking plaintiff's allegations as
true as required at this stage of the proceeding, the Court will issue process on this claim.
The Court also finds that plaintiff has stated a plausible claim of excessive force in violation
of the Fourteenth Amendment against defendants Bordos, Loper and Randoff in their individual
capacities for forcibly throwing plaintiff on the ground. Plaintiff claims that he was restrained at
the time by his hands and feet, and that these defendants were told by defendant Spears to throw
him down. Plaintiff alleges, these three defendants did so, with such force that he lost
consciousness. Taking these allegations as true, plaintiff has stated enough to require the Court to
process his claim for excessive: force against defendants Bordos, Loper and Randoff in their
individual capacities under the Fourteenth Amendment. See, e.g., Blazek v. City of Iowa City, 761
F.3d 920, 925 (8th Cir. 2014) (Court found that “when a person is subdued and restrained with
handcuffs, a “gratuitous and completely unnecessary act of violence’ is unreasonable”).
The Court additionally finds that it is plausible plaintiff could have stated a claim of
excessive force in violation of the Fourteenth Amendment against the unnamed Lieutenant who
dragged him, while in leg restraints and handcuffs, down the walk. However, plaintiff s failure to
identify this defendant in his complaint is fatal to his claim for relief. See Madewell, 909 F.2d at

1208 (liability under 42 U.S.C. § 1983 requires a causal link to and direct responsibility for the
alleged deprivation of rights). Thus, this claim is subject to dismissal.
As to plaintiffs allegations regarding the use of a restraint chair, the Court looks to various
factors in determining whether the chair’s use amounted to punishment. These factors include “the
pretrial detainee’s conduct prior to confinement, the duration of the confinement, whether the
pretrial detainee was monitored at regular intervals while in the restraint chair, whether the pretrial
detainee was given regular breaks from confinement to the restraint chair, how the pretrial detainee
responded when the officials offered to release the pretrial detainee from the restraint chair, and
whether the pretrial detainee was injured or suffered pain as a result of confinement to the restraint
chair.” Undlin v. City of Minneapolis, Civil No. 08-1855 (JNE/FLN), 2009 WL 3754208, at *5
Minn. Nov. 4, 2009).
In this case, plaintiff states that he was placed in a restraint chair for a 24-hour period and
the restraint chair was kept in a “rubber room.” Plaintiff, however, does not speak to how often the
restraints were checked or when/if officers offered to allow him to have breaks from the chair.
Plaintiff also fails to indicate if he suffered from any injuries or medical issues while in the restraint
chair. Although the Court must accept plaintiff's allegations as true and make all reasonable
inferences in plaintiffs favor, see Jones v. Douglas Cty. Sheriff's Dep’t, 915 F.3d 498, 499 □□□
Cir. 2019), the Court cannot place facts in the record where there are none. As such, the Court
cannot issue process as to plaintiffs claims relating to his time in the restraint chair. Thus, this
claim must also be dismissed.

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C. Plaintiffs Claims for Failure to Intervene Are Subject to Dismissal
Plaintiff alleges in a conclusory fashion that defendants Gayden, Benjiman, Wilborn and
Bronk watched and failed to intervene in unconstitutional misconduct while it was occurring.° “A
jail official violates the Due Process Clause . . . when he is deliberately indifferent to a substantial
risk of serious harm to a pre-trial detainee and fails to protect the detainee.” Glaze v. Byrd, 721
F.3d 528, 531 (8th Cir. 2013). Deliberate indifference requires a detainee to make two showings.
Id. First, objectively, the detainee must demonstrate that he faced a serious risk of harm. Id.
Second, he must subjectively establish that the jail “official knew of and disregarded the risk to
the inmate’s safety.” Jd. Under the deliberate-indifference standard, a correctional officer can be
held liable for failing to intervene in another officer’s constitutional violation. See Edwards, 750
F.3d at 733 (determining that district court correctly denied guards qualified immunity after
finding “that the guards were aware that excessive force was being used against the plaintiffs but
did not intervene to protect them”); Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981)
(determining that a deputy could be held “jointly liable for failing to intervene if a fellow officer .

. . Was using excessive force and otherwise was unlawfully punishing the prisoner”).
Even liberally construing the complaint, the Court is simply unable to find that plaintiff
has stated plausible claims for failure to intervene as to the multiple claims of excessive force
articulated in plaintiff's complaint. In the first instance of alleged excessive force, namely the

shooting of rubber shotgun shells at plaintiff by defendants Wilborn and Spears, plaintiff has failed

SPlaintiff also alleges that defendant Spears ordered defendants Bordos, Loper and Randoff to engage in
unconstitutional conduct. There is no indication that plaintiff is alleging a failure to train or supervise in
this instance. Rather, it appears that plaintiff is merely asserting a general responsibility of Spears for
supervision over the other officers, such as respondeat superior. There is no respondeat superior liability
under 42 U.S.C. § 1983. See Marsh v. Phelps Cty., 902 F.3d 745, 754 (8" Cir. 2018).
1]

to specifically indicate which of the other defendants were at the scene at the time of the asserted
shooting.
Similarly, in the second instance of purported excessive force by defendants Bordos, Loper
and Randoff, plaintiff again fails to identify any other defendants who witnessed the event. For the
last two allegations, being ostensibly dragged down the walk and left in the restraint chair, plaintiff
has again failed to identify any defendant who allegedly failed to intervene in the unconstitutional
conduct such that they could be held liable for disregarding the risk to his safety. For these reasons,
the Court finds that plaintiff's claims for failure to intervene are subject to dismissal.
D. Plaintiff’s Claims for Deliberate Indifference to Serious Medical Needs Are Subject
to Dismissal
As a result of the incident on November 9, 2023, plaintiff claims that his chin, wrist, and
ankle were bruised, and he insists in a conclusory manner that it took Aecrdants more than two
weeks to give him medical attention for his health issues. He states that he did not get to see a
doctor, but he admits that he was given an X-ray and “examined.” Plaintiff does not indicate who
examined him or who ordered the X-ray. Plaintiff also fails to state when the X-ray occurred.
The Fourteenth Amendment’s Due Process Clause is used to evaluate a pretrial detainee’s
claims of deliberate indifference, whereas the Eighth Amendment is used to evaluate claims of
convicted prisoners. See Stearns v. Inmate Servs. Corp., 957 F.3d 902, 906 (8th Cir. 2020).
However, this distinction “makes little difference as a practical matter,” because the same standard
is applied. Kahle v. Leonard, 477 F.3d 544, 550 (8th Cir. 2007) (“Pretrial detainees are entitled to
the same protection under the Fourteenth Amendment as imprisoned convicts receive under the
Eighth Amendment.”); see also Vaughn v. Greene Cnty., 438 F.3d 845, 850 (8th Cir. 2006)
(“Although this court has yet to establish a clear standard [for medical mistreatment] for pretrial
detainees, we repeatedly have applied the same ‘deliberate indifference’ standard as is applied to

12

Eighth Amendment claims made by convicted inmates.”); Hartsfield v. Colburn, 371 F.3d 454,
457 (8th Cir. 2004) (applying the Eighth Amendment deliberate indifference analysis to a pretrial
detainee’s Fourteenth Amendment claim).
The Eighth Amendment prohibits cruel and unusual punishment, and limits conditions of
confinement. Robinson v. California, 370 U.S. 660 (1962); Rhodes v. Chapman, 452 U.S. 337
(1981). The Supreme Court has explained this limit as a prohibition on punishments that “involve
the unnecessary and wanton infliction of pain” including those that are “totally without penological
justification.” Rhodes, 452 U.S. at 346 (quoting Gregg v. Georgia, 428 US. 153, 173, 183 (1976)).
A jail official’s intentional denial of, or delayed access to, medical care for a prisoner’s serious
injury constitutes unnecessary and wanton infliction of pain, giving rise to a claim of deliberate
indifference to that prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05
(1976). To prevail on a claim of deliberate indifference, a plaintiff must prove that he suffered
from an objectively serious medical need, and that prison officials actually knew of and
deliberately disregarded that need. Roberts v. Kopel, 917 F.3d 1039, 1042 (8th Cir. 2019).
“[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).
Plaintiff has not indicated whether, or if, he asked a particular defendant for medical
assistance after his altercation on November 9, 2023. He has not stated that he sought medical
attention from one of the named defendants, such as pain medicine, to see a nurse, for ice or anti-
inflammatories, but that he was denied such treatment. Moreover, he has not indicated that his

13

need for medical care was obvious to any one of the defendants in this action. In fact, plaintiff has
indicated that he was actually “examined,” although he does not state by whom he was examined.
Moreover, he states that he got an X-ray, which had to have been ordered by a medical
professional. Last, plaintiff acknowledges that he received medical treatment within a two-week
period of the time of the altercation.
Given that plaintiff has not articulated which of the defendants in this case he believes
denied him medical care, or what care he believes they denied him, the Court cannot find that he
was subjected to deliberate indifference to serious medical needs. Further, plaintiff admits that he
received some medical treatment (X-ray and examination) at some point after the November 9,
2023, incident. Thus, plaintiff did not go entirely without medical treatment for a long period of
time, despite his conclusory claims to the contrary. The Court notes that “[t]he 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). Based on all these reasons,
plaintiff's complaint fails to state a claim of deliberately indifferent medical care against
defendants. This claim will be dismissed under 28 U.S.C. § 1915(e)(2)(B).
Motion for Appointment of Counsel
Plaintiff has also filed a motion for appointment of counsel. [ECF No. 3]. An indigent
litigant has “neither a constitutional nor a statutory right to appointed counsel in civil cases.”
Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018) (citing Phillips v. Jasper Cty. Jail, 437 F.3d
791, 794 (8th Cir. 2006)). A district court may appoint counsel in a civil case if it 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.” Jd. (citing
Johnson v. Williams, 788 F.2d 1319, 1322 (8th Cir. 1986)). When determining whether to appoint

14

counsel for an indigent litigant, a court considers relevant factors such as the factual complexity
of the issues, the litigant’s ability to investigate the facts and present his or her claims, the existence
of conflicting testimony, and the complexity of the legal arguments. /d. (citing Phillips, 437 F.3d
at 794).
In this case, there is no indication that plaintiff is incapable of representing himself, and
nothing in the instant motion or in the record before the Court indicates that the factual or legal □
issues are sufficiently complex to justify the appointment of counsel. Moreover, defendants have
yet to be served with process and discovery has not begun, so there is no conflicting testimony.
However, recognizing that circumstances may change, the Court will deny the OE for
appointment of counsel without prejudice. .
Accordingly,
IT IS HEREBY ORDERED that plaintiff’ s motion seeking leave to commence this action
without prepaying fees or costs [ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that, within thirty (30) days of the date of this order, □
plaintiff must pay an initial filing fee of $1.00. 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) this case number; and (4) the statement that the remittance is for an
original proceeding.
IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause process
to issue upon the complaint as to defendants Deputy Commissioner Unknown Spears and Captain
Unknown Wilborn for excessive force in violation of the Fourteenth Amendment, for allegedly
firing on plaintiff with rubber bullets, in their individual capacities. Defendants shall be served
through the waiver agreement this Court maintains with the City of St. Louis.

15

IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause process
to issue upon the complaint as to defendants Lieutenant Unknown Bordos, Lieutenant Unknown
Loper and Officer Unknown Randoff for excessive force in violation of the Fourteenth
Amendment, for allegedly throwing plaintiff down forcibly and allegedly knocking him
unconscious, in their individual capacities. Defendants shall be served through the waiver
agreement this Court maintains with the City of St. Louis.
IT IS FURTHER ORDERED that plaintiff's remaining claims against defendants
brought pursuant to 42 U.S.C. § 1983, are DISMISSED without prejudice.
IT IS FURTHER ORDERED that all claims against defendants Officer Unknown
Watson, Officer Unknown Williams, Officer Unknown Bryant, Officer Unknown Hampton,
Lieutenant Unknown Gayden, Captain Unknown Benjiman and Unit Manager Unknown Bronk
brought pursuant to 42 U.S.C. § 1983 are DISMISSED without prejudice.
IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF
No. 3] is DENIED without prejudice.
IT IS FURTHER ORDERED that an appeal from Order would not be taken in good faith.
A separate Order of Partial Dismissal will be filed herewith.
Dated this 31%' day of May, 2024.

Joys i
D STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10240371. Public record. Not legal advice.