Harmon v. Downing

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

HOWARD E. HARMON, )

)

Plaintiff, )

v. ) No. 4:23-cv-01105-SEP

)

ALEXANDER L. DOWNING, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Before the Court is self-represented Plaintiff Howard E. Harmon’s application to proceed

in the district court without prepaying fees or costs. Having reviewed the application, the Court

finds Plaintiff lacks sufficient funds to pay the entire filing fee and will assess an initial partial

filing fee of $1.70. Furthermore, after initial review, the Court will issue service on the

Complaint as to Defendants Alexander L. Downing, Peyton J. Keener-Harris, Dakota Lett, and

Unknown Boyer. The Court will dismiss without prejudice the remaining Defendants.

MOTION TO PROCEED WITHOUT PREPAYING FEES OR COSTS

A prisoner bringing a civil action is required to pay the full amount of the filing fee. 28

U.S.C. § 1915(b)(1). If the prisoner has insufficient funds in his 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. See 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 has submitted a certified account statement for the period from February 10,

2023, through July 10, 2023, showing an average monthly deposit of $8.50. The Court will

assess an initial partial filing fee of $1.70, which is 20% of his average monthly deposit.

LEGAL STANDARD ON INITIAL REVIEW

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

pauperis if it is frivolous 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 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)). But even pro se complaints must

“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, 364 F.3d at 914-15 (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 brings this civil rights action under 42 U.S.C. § 1983 against 27 Defendants,

alleging his constitutional rights were violated when Defendants retaliated against him after he

reported a Prison Rape Elimination Act (PREA) incident. The alleged retaliation included

depriving Plaintiff of three meals and performing a cell extraction by use of force on July 3,

2021. He names as Defendants the following individuals employed at the Potosi Correctional

Center (PCC): Alexander Downing (Correctional Officer (CO)), Unknown Wells (CO),

Unknown Brown (CO), Peyton Keener-Harris (CO), Dakota Lett (CO), Michael Thompson

(CO), Unknown Smith (CO), Matthew Harlan (CO), Unknown Boyer (CO), Nathan Waibl (CO),

Unknown Carver (CO), Unknown Mezo (CO), Unknown Smith (CO), Jeffrey Jones (CO),

Joshua Browers (CO), Matthew Pultz (Functional Unit Manager (FUM)), Jody Glore (Deputy

Warden), Paul Blair (Warden), Ashley Scaggs (Psychologist), Barbara Lindell (Psychologist),

Brian Davis (FUM), Unknown Morgan, Unknown Fox, and PCC. He also names as Defendants

the following officials: Anne Precythe (Director of Adult Institutions, MDOC), Eric Schmitt1

(Attorney General of Missouri), and Michael Parson (Governor of Missouri). He sues all

Defendants in both their individual and official capacities. Doc. [1] at 3, 11.

Assuming all well-pled facts in the Complaint to be true, the facts are as follows: In June

of 2021, CO Smith retaliated against Plaintiff, after insulting him by making “homosexual

comments.” Id. at 12. Plaintiff asked to file a PREA report with COs Harlan and Fox, but more

than five months passed before the report was filed by CO Morgan. Id. The morning after it was

filed, Plaintiff was denied breakfast by CO Smith. Id. CO Downing made a derogatory

statement and also denied Plaintiff his meal. Id. CO Smith slapped a foam cup out of Plaintiff’s

hand at the food port. Id. In response, Plaintiff sought to be transferred from PCC, writing

letters to Defendants Precythe, Schmitt, and Parson.

On July 3, 2021, CO Wells denied Plaintiff a shower and a morning meal. COs

Downing, Keener-Harris, and Lett denied him a second meal. Id. at 14. After that, COs

Downing and Boyer returned with pepper spray and a camera and ordered Plaintiff to submit to

restraints. Id. Plaintiff’s cellmate tried to explain that they had done nothing to warrant a cell

extraction or use of force, but Downing became hostile and ordered Plaintiff’s cellmate to move

away from the food port so that Downing could spray Plaintiff with pepper spray. Id. at 15.

Fearing the pepper spray, Plaintiff climbed to the top bunk and shielded himself with the

mattress. Id. Despite this, he was still blinded by the spray. Id. Plaintiff descended from the

top bunk and swung his arm to protect himself, after which he was punched in the head by

several fists, even after being fully restrained. Id. Plaintiff was then dragged to a suicide cell

while Defendants stated that Plaintiff liked to beat women. Id.

1 Eric Schmitt was the Attorney General of Missouri when this action commenced. The Attorney General of

Missouri is now Andrew Bailey, who is substituted as the named party pursuant to Federal Rule of Civil Procedure

25.

On July 5, 2021, CO Thompson fabricated a claim that Plaintiff made a noose in his cell.

Id. That fabrication was to allow Thompson to use force and retaliate against Plaintiff; it also

provided a pretext “to clean [the] cell, a crime scene, so that the psych and medical and regular

administration were not aware that an inmate assault occurred.” Id.

Plaintiff states that he prepared an affidavit “to show cause of why I should be transferred

and to stop retaliation.” Id. at 17. He provided copies of this affidavit to Defendants Jones,

Waibl, Carver, Brown, Blair, Scaggs, Pultz, Mezo, Smith, Davis, Browers, and Lindell. Id.

Plaintiff asked for their help with transferring out of PCC and stopping the retaliation. Id.

The assault caused pain on Plaintiff’s left upper back, left shoulder, and collar bone. Id.

at 21. His left eye remained blurry for several months after the attack. Id. He also had knots

and open cuts on his head and face. Id. He was denied medical attention over the Fourth of July

weekend. Id. at 16. Somewhat contrary to this assertion, he states that he had a medical

assessment on July 5, 2021. Id. at 21. Nurse Frank would not schedule him for x-rays or give

him any pain medication, and Plaintiff filed grievances about the refusal. Id. Two or three

months later, Nurse Crouch sent him to see an eye doctor and get x-rays. Id.

Plaintiff seeks punitive and compensatory damages in the amount of $100,000 from each

Defendant. Id. at 24. He also seeks to have criminal charges brought against Defendants, plus

he wants a declaratory judgment, injunctive relief, and a temporary restraining order. Id.

Finally, he wants to be evaluated by a doctor outside of MDOC and to be transferred to another

institution where he can feel safe. Id.

DISCUSSION

I. First Amendment Retaliation

Plaintiff alleges that he was subjected to a number of unlawful conditions of confinement

in retaliation for reporting a PREA incident while incarcerated at PCC. The right to be free from

retaliation for availing oneself of the grievance process is clearly established in the Eighth

Circuit. Santiago v. Blair, 707 F.3d 984, 991 (8th Cir. 2013); see also Nelson v. Shuffman, 603

F.3d 439, 450 (8th Cir. 2010) (“actions taken in retaliation for an inmate’s filing of a grievance

are actionable under 42 U.S.C. § 1983”). Here, Plaintiff alleges that Defendants Downing,

Keener-Harris, Lett, and Boyer retaliated against him for filing a PREA complaint in violation of

the First Amendment. The retaliation allegedly included three denied meals and an unnecessary

cell extraction during which he was pepper sprayed and assaulted.

Plaintiff’s allegations are sufficient to establish, for purposes of initial review, that the

adverse action taken in retaliation for filing a PREA complaint would chill a person of ordinary

firmness from filing such complaints. See Santiago, 707 F.3d at 992 (the question of ordinary

firmness “is usually best left to the judgment of the jury”). The Court will therefore issue service

on Defendants Downing, Keener-Harris, Lett, and Boyer.

(b) Eighth Amendment Excessive Force

Plaintiff has also stated a plausible claim for unlawful use of force under the Eighth

Amendment. He alleges that he was pepper sprayed and beaten during an unnecessary cell

extraction, even after he was fully restrained and compliant. He claims his head and face were

repeatedly slammed into his bunk and the walls of his cell.

The Eighth Amendment forbids the “unnecessary and wanton infliction of pain”

constituting cruel and unusual punishment. Hudson v. McMillan, 503 U.S. 1, 9-10 (1992); see

also Burns v. Eaton, 752 F.3d 1136, 1138 (8th Cir. 2014). When a prison official is accused of

using excessive physical force in violation of the Eighth Amendment, the core judicial inquiry is

“whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.” Jackson v. Gutzmer, 866 F.3d 969, 974 (8th Cir. 2017). The

factors to be considered in determining whether force was used in good faith include “the need

for the application of force, the relationship between the need and the amount of force that was

used, and the extent of injury inflicted.” Whitley v. Albers, 475 U.S. 312, 321 (1986).

Plaintiff alleges he was pepper sprayed and assaulted by Defendants Downing, Keener-

Harris, Dakota, and Boyer, and that the assault continued even after he was cuffed and

defenseless. The Court finds on initial review that Plaintiff has stated a plausible claim that the

Defendants used excessive force in violation of the Eighth Amendment and will issue process on

them in their individual capacities.

(c) Denial of Medical Care

Plaintiff alleges he was denied medical attention on the weekend of July 4, 2021. He

states that he was assessed by a medical team on July 5, 2021, and two to three months later he

was sent to an eye doctor, received x-rays, and was given painkillers. Viewing the facts in the

light most favorable to Plaintiff, the Court finds that the allegations are not sufficient to make a

plausible claim for deliberate indifference to a serious medical need.

To establish deliberate indifference, a plaintiff must prove that he suffered from an

objectively serious medical need, and that prison officials actually knew of yet disregarded that

need. Roberts v. Kopel, 917 F.3d 1039, 1042 (8th Cir. 2019). 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.” Coleman v. Rahija,

114 F.3d 778, 784 (8th Cir. 1997). To satisfy the subjective part of the analysis, 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.” Redmond v. Kosinski, 999 F.3d

1116, 1120 (8th Cir. 2021).

Deliberate indifference can include the intentional denial or delay of access to medical

care, or the intentional interference with treatment or prescribed medication. Vaughn v. Lacey,

49 F.3d 1344, 1346 (8th Cir. 1995). Deliberate indifference is more than mere disagreement

with treatment decisions and is greater than gross negligence. Gibson v. Weber, 433 F.3d 642,

646 (8th Cir. 2006). “A prisoner’s mere difference of opinion over matters of expert medical

judgment or a course of medical treatment fails to rise to the level of a constitutional violation.”

Meuir v. Greene Cty. Jail Emps., 487 F.3d 1115, 1118-19 (8th Cir. 2007).

Plaintiff was assessed by a medical team within two days of the alleged assault, which

occurred on a holiday weekend. Plaintiff does not allege what his injuries were at the time of the

medical assessment, nor does he allege what condition the medical team was deliberately

indifferent to. He does not allege that medical professionals assessed and deliberately

disregarded any serious medical need. He was later seen by an eye doctor and received x-rays.

Viewed in the light most favorable to Plaintiff, he alleges that he should have been taken to the

eye doctor and received x-rays sooner. But a subjective desire to be seen sooner does not state a

plausible claim for deliberate indifference. The Court will therefore dismiss Plaintiff’s Eighth

Amendment claims of deliberate indifference to a serious medical need.

(d) Defendants Unknown Brown and Unknown Carver

In an apparently unrelated incident, Plaintiff alleges that Defendant Brown approached

him in 2020 and “aggressively” told him that they were “going to leave that situation alone.”

Doc. [1] at 18. Plaintiff alleges Brown was referring to Plaintiff’s prior assault on staff at

ERDCC, which precipitated his transfer to PCC. Id. Plaintiff took it as a threat, and when he

asked Carver about the statement, Carver explained that “no one [is] going to bother me. As

long as I lay back.” Id.

Plaintiff has alleged no constitutional violation arising out of these actions, and the Court

cannot discern one. The Court will dismiss Plaintiff’s claims against Defendants Brown and

Carver for failure to state a claim upon which relief may be granted.

(e) No Personal Responsibility Alleged

Plaintiff fails to state individual capacity claims against the remaining Defendants,

including Unknown Wells, Michael G. Thompson, Unknown Smith, Matthew C. Harlan, Nathan

Waibl, Unknown Mezo, Unknown Smith, Jeffrey Jones, Joshua Browers, Matthew Pultz, Jody

Glore, Paul Blair, Ashley Scaggs, Barbara Lindell, Anne L. Precythe, Eric Schmitt, Michael L.

Parson, Brian Davis, Unknown Morgan, Unknown Fox, and Potosi Correctional Center.

Plaintiff mentions Defendants Precythe, Schmitt, and Parson once, stating that he wrote them a

letter about the retaliation he was experiencing at PCC in an attempt to be transferred to a

different facility. Defendants Jones, Waibl, Blair, Scaggs, Pultz, Mezo, Smith are only

mentioned when Plaintiff states he copied and sent them an affidavit “to show cause of why I

should be transferred and to stop retaliation.” Id. at 17.

Plaintiff fails to allege facts showing how these Defendants are causally linked to, and

directly responsible for, any violation of his rights. See Madewell v. Roberts, 909 F.2d 1203,

1208 (8th Cir. 1990) (liability under § 1983 requires a causal link to, and direct responsibility

for, the alleged deprivation of rights). Nothing in the Complaint can be construed as alleging

that these Defendants had any involvement with any incident or policy that gave rise to the

allegedly unconstitutional conduct. As a result, Plaintiff’s claims of constitutional violations

against these Defendants fail to state a claim upon which relief may be granted. See also

Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir. 2014) (citing Iqbal, 556 U.S. at 676) (to state a

claim under § 1983, plaintiff must plead that a government official has personally violated his

constitutional rights); Beaulieu v. Ludeman, 690 F.3d 1017, 1030-31 (8th Cir. 2012) (supervisors

cannot be held vicariously liable under § 1983 for actions of subordinates, and general

allegations that a defendant supervises a facility without specification of the defendant's

individual actions are not sufficient to state claim).

(f) Loss of Property Claim

Plaintiff alleges his property was thrown away when he was moved to the administrative

segregation wing. “When a state employee’s unauthorized, random acts deprive a person of

property, the state employee’s acts do not violate the procedural requirements of the Due Process

Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is

available.” Clark v. Kansas City Missouri Sch. Dist., 375 F.3d 698, 702 (8th Cir. 2004).

Missouri provides such an adequate postdeprivation remedy. See Orebaugh v. Caspari, 910 F.2d

526, 527 (8th Cir. 1990). Specifically, an individual claiming the right to possession of personal

property may bring an action in replevin. Mo. R. Civ. P. 99.01; see also Allen v. City of Kinloch,

763 F.2d 335, 337 (8th Cir. 1985) (plaintiff seeking return of personal property under 42 U.S.C.

§ 1983 failed to establish any violation of his constitutional rights because he could obtain

adequate relief by filing a replevin action under Missouri law). To the extent Plaintiff alleges

claims arising out of the loss of his property, these claims will be dismissed.

(g) Official Capacity Claims

Finally, the Court will dismiss Plaintiff’s official capacity claims against Defendants. An

official capacity claim against an employee of a governmental entity 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 are employees of the State of Missouri or the Missouri Department of

Corrections, which is a department of the State. “Section 1983 provides for an action against a

‘person’ for a violation, under color of law, of another’s civil rights.” McLean v. Gordon, 548

F.3d 613, 618 (8th Cir. 2008). But “neither a State nor its officials acting in their official

capacity are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

(1989); see also Calzone v. Hawley, 866 F.3d 866, 872 (8th Cir. 2017) (a “suit for damages

against a state official in his official capacity is a suit against the State, and the State is not a

person under § 1983”). Moreover, in the absence of a waiver, the Eleventh Amendment bars suit

against a state official acting in his or her official capacity. Morstad v. Dep’t of Corr. & Rehab.,

147 F.3d 741, 744 (8th Cir. 1998). For these reasons, the Court will dismiss Plaintiff’s claims

against Defendants brought in their official capacities.

MOTION TO APPOINT COUNSEL

Plaintiff has also filed a motion to appoint counsel. See Doc. [3]. The motion will be

denied at this time. 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).

On review of those factors, the Court finds that the appointment of counsel is not

warranted. Plaintiff has demonstrated so far that he can adequately present his claims to the

Court. Additionally, neither the factual nor the legal issues in this case appear to be complex.

The Court will entertain future motions for appointment of counsel as the case progresses.

Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s application to proceed in the district court

without prepaying fees and costs is GRANTED. Doc. [2].

IT IS FURTHER ORDERED that Plaintiff must pay an initial partial filing fee of $1.70

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 the Clerk of Court shall issue process upon the

Complaint, pursuant to the service agreement the Court maintains with the Missouri Attorney

General’s Office, as to Defendants Alexander L. Downing, Peyton J. Keener-Harris, Dakota Lett,

and Unknown Boyer in their individual capacities.

IT IS FURTHER ORDERED that Plaintiff’s Complaint against Defendants Unknown

Wells, Unknown Brown, Michael G. Thompson, Unknown Smith, Unknown Harlan, Nathan

Waibl, Unknown Carver, Unknown Mezo, Unknown Smith, Jeffrey Jones, Joshua Browers,

Matthew Pultz, Jodi Glore, Paul Blair, Ashley Scaggs, Barbara Lindell, Anne L. Precythe, Eric

Schmitt, Michael L. Parson, Brian Davis, Unknown Morgan, Unknown Fox, and Potosi

Correctional Center is DISMISSED without prejudice for failure to state a claim upon which

relief may be granted. 28 U.S.C. § 1915(e)(2)(B).

IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel is DENIED

without prejudice. Doc. [3]

An Order of Partial Dismissal will accompany this Memorandum and Order.

Dated this 13 day of September, 2024.

sa & E. PITLYK L

UNITED STATES DISTRICT JUDGE