Strahan v. Phibbs

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION GEORGE ROBERT STRAHAN, ) Plaintiff, v. No. 1:21-cv-28-SNLJ UNKNOWN PHIBBS, et al., Defendants.

MEMORANDUM AND ORDER This matter is before the Court on the motion of plaintiff George Robert Strahan, an inmate at the Butler County Jail, for leave to commence this civil action without prepaying fees or costs.

The Court has determined to grant the motion, and assess an initial partial filing fee of $1.

Additionally, for the reasons discussed below, the Court will give plaintiff the opportunity to file an amended complaint. The Court will also deny as moot plaintiff's motion seeking to amend or correct the complaint, and will deny without prejudice his motion to appoint counsel. 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 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 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 $10.00, until the filing fee is fully paid. Id. Plaintiff has not provided the Court with a certified copy of his inmate account statement.

Instead, plaintiff filed a motion on April 28, 2021 in which he stated, inter alia, that he requested the statement from his institution, but was told it would not be provided. The Court will therefore assess an initial partial filing fee of $1.00, an amount that is reasonable based upon the information before the Court. See Henderson y. 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.”).

Legal Standard on Initial Review This 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 may be granted. 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.” /d. at 678 (citing Twombly, 550 U.S. at 555).

This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429 U.S. 97, 106 (1976). This 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 pro se complaints must 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). Federal courts are not required to assume facts that are not alleged, Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules 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 filed the complaint on February 11, 2016 against the Butler County Jail, and against a corrections officer he identified as “Unknown Phibbs.” He indicated he sued Phibbs in an individual and official capacity. However, in the April 28, 2021 motion, plaintiff created confusion about the correct identity of the correctional officer defendant. Plaintiff first identified the correctional officer defendant using the surname “Phililis.” (ECF No. 5 at 1). However, plaintiff then wrote: “I am writing this as a motion/or to inform the Court as of me finding out the c/os correct spelling of his name, or at least the c/os name spelling may still be different, but the c/os name is Gregory fihlis, that is one of the DeffJendants in this case.” /d. For purposes of the following discussion, the Court will refer to the correctional officer defendant as “the officer.”

According to the complaint, on August 12, 2019, the officer choked plaintiff from behind and “power slam[m]ed” him to the floor. (ECF No. 1 at 3). Plaintiff writes: I was the only inmate called out of my cell, are let out that day by c/o Phibbs, through chuck hole, The Sheriff[]s Department and County Jail harmed me, by allowing c/o Phibbs to be a c/o; or allowed. [sic]” Id. Plaintiff claims the incident exacerbated prior health problems. He avers he was taken to the hospital, but the officer was the only one with him. Neither an MRI nor a CT scan was performed. Plaintiff appears to blame the officer and/or the jail for preventing him from receiving necessary testing.

Discussion The complaint is frivolous as to the Butler County Jail, as that entity has no independent legal existence and is not subject to suit under § 1983. See Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (1992) (a department or subdivision of local government is not a “juridical,” or suable, entity under 42 U.S.C. § 1983); see also Ballard v. Missouri, Case No. 4:13-cv-528-JAR (E.D. Mo. Apr. 22, 2013) (holding that “[pjlaintiff’s claims against the City of St. Louis Department of Public Safety, the St. Louis County Justice Center, the City of St. Louis Justice Center, and MSI/Workhouse are legally frivolous because these defendants are not suable □ entities”); see also Wallace v. St. Louis City Justice Ctr., Case No. 4:12-cv-2291-JAR (E.D. Mo. Jul. 17, 2013) (dismissing claims against the St. Louis City Justice Center because it is not a suable entity). Even if the Court were to construe the complaint as brought against the municipality, plaintiff's allegations would not state a claim of municipal liability. See Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 691 (1978).

Plaintiffs official capacity claims against the officer are also frivolous. Naming a government official in his official capacity is the equivalent of naming the government entity that employs him. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). In this case, plaintiff alleges the officer is employed by the Butler County Jail which, as noted above, is not an entity that can be sued under § 1983. See Ketchum, 974 F.2d at 82.

The Court now turns to plaintiffs individual capacity claims against the officer. Plaintiffs allegations of excessive force appear serious. However, it cannot be said the complaint adequately states a claim against the officer because plaintiffs factual allegations are not entirely clear and because plaintiff has created confusion about the officer’s correct identity. Additionally, while it appears plaintiff wishes to claim the officer violated his constitutional right to adequate medical care, the complaint does not contain sufficient facts to state such a claim. Plaintiff will be given the opportunity to file an amended complaint to clearly identify the officer, and to clearly set forth his claims.

Plaintiff is advised that the amended complaint will replace the original. See In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005) (“It is well- established that an amended complaint supersedes an original complaint and renders the original complaint without legal effect”). Plaintiff must type or neatly print the amended complaint on the Court’s prisoner civil rights complaint 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 where applicable.”).

In the “Caption” section of the complaint form, plaintiff must clearly identify the defendant or defendants he wishes to sue. See Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the parties”). Plaintiff must avoid naming anyone as a defendant unless that person is directly related to his claim. Plaintiff must also specify the capacity in which he intends to sue the defendant.

In the “Statement of Claim” section, plaintiff should begin by writing the defendant’s name. In separate, numbered paragraphs under that name, plaintiff should set forth a short and plain statement of the facts that support his claim or claims against that defendant. See Fed. R. Civ. .

P. 8(a). Each averment must be simple, concise, and direct. See id. Plaintiff must state his claims in numbered paragraphs, and each paragraph should be “limited as far as practicable to a single set of circumstances.” See Fed. R. Civ. P. 10(b). If plaintiff names a single defendant, he may set forth as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a). If plaintiff names more than one defendant, he should only include claims that arise out of the same transaction or occurrence, or simply put, claims that are related to each other. See Fed. R. Civ. P. 20(a)(2).

It is important that plaintiff allege facts explaining how the defendant was personally involved in or directly responsible for harming him. See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). Plaintiff must explain the role of the defendant, so that the defendant will have notice of what he or she is accused of doing or failing to do. 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.”).

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).

Plaintiff is advised he must avoid attempting to amend or supplement a complaint by filing separate documents containing changes he wishes to make to certain parts. Instead, plaintiff must file a single comprehensive pleading that sets forth his claims for relief. See Popoalii v. Correctional Medical Services, 512 F.3d 488, 497 (8th Cir. 2008) (finding that it is appropriate to deny leave to amend a complaint when a proposed amended complaint was not submitted with the motion). .

Because plaintiff is being given the opportunity to file an amended complaint, the Court will deny as moot his motion seeking to amend or supplement the original complaint. The Court will also deny plaintiffs motion to appoint counsel, without prejudice. “A pro se litigant has no statutory or constitutional right to have counsel appointed in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). When determining whether to appoint counsel for an indigent litigant, the Court considers 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 claims. /d. After considering these factors, the Court concludes that the appointment of counsel is unwarranted at this time. Based upon the complaint, it does not appear that this case is factually or legally complex, nor is there any indication plaintiff will be unable to investigate the facts. The motion is also premature. The Court will therefore deny the motion for the appointment of counsel without prejudice, and will entertain future motions for the appointment of counsel, if appropriate, as this litigation progresses.

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 plaintiff must pay an initial filing fee of $1.00 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to “Clerk, United States District Court,” and to include upon it: (1) his name: (2) his prison registration number; (3) the case number; and (4) the statement that the remittance is for an original proceeding.

IT IS FURTHER ORDERED that the Clerk is directed to mail to plaintiff a copy of the Court’s prisoner civil rights complaint form.

IT IS FURTHER ORDERED that plaintiff must file an amended complaint within thirty (30) days from the date of this Order.

7 .

IT IS FURTHER ORDERED that plaintiff's motion to appoint counsel (ECF No. 3) is DENIED without prejudice.

IT IS FURTHER ORDERED that plaintiff's Motion to Amend/Correct (ECF No. 5) is DENIED as moot.

Dated this Wt day of June, 2021.

fox 4 . Kalen / ) \ STEPHEN N. LIMBAUGH, JR. SENIOR UNITED STATES DISTRICT JUDGE