Combs v. Hayden

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION LEONTAYE L. COMBS, ) ) Plaintiff, ) ) v. ) No. 4:21 CV 407 DDN ) JOHN HAYDEN, et al., ) ) Defendants. ) MEMORANDUM AND ORDER This matter is before the Court on the motion of plaintiff Leontaye L. Combs, an inmate at the Jefferson City Correctional Center (“JCCC”), for leave to commence this civil action without prepaying fees or costs. Having reviewed the motion and the financial information submitted in support, the Court has determined to grant the motion, and assess an initial partial filing fee of $11.01. Additionally, for the reasons discussed below, the Court will give plaintiff the opportunity to file an amended 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. In support of the instant motion, plaintiff submitted an inmate account statement showing an average monthly deposit of $37.29, and an average monthly balance of $55.06. The Court will therefore assess an initial partial filing fee of $11.01, which is twenty percent of plaintiff’s average monthly balance.

Legal Standard on Initial Review This Court is required to review complaint filed in forma pauperis, and must dismiss it 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. Iqbal, 556 U.S. 662, 678 (2009). Although a plaintiff need not allege facts in painstaking detail, the facts alleged “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. This standard “demands more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” Iqbal, 556 U.S. at 678. Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw upon judicial experience and common sense. Id. at 679. The court must 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.” Id. 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 pursuant to 42 U.S.C. § 1983 against St. Louis Metropolitan Police Chief John Hayden, police officer Glennon Frigerio, and “Entire St. Louis Metropolitan Police Department.” Plaintiff sues Hayden and Frigerio in their official and individual capacities.

He sets forth his statement of claim as follows: On March 31, 2018 while fleeing from SLMPD officers Glennon Frigerio and his partner James Swilling on foot after a high speed car pursuit, I was shot once in the posterior of my right thigh in the backyard of my then girlfriend’s home at [omitted] while I attempted to run away from him with my hands up, unarmed.

Chief John Hayden on March 31, 2018 showed up on scene after the officer involved shooting and turned the case over to the St. Louis County Crimes against persons that involved officers from the SLMPD, and not officers from the County Department. Chief John Hayden also allowed P.O. Glennon Frigerio to be improperly trained when dealing with similar situations, which caused P.O.

Glennon Frigerio to act negligently. (ECF No. 1 at 3). Plaintiff seeks monetary relief in the amount of $5 million, and other relief.

Discussion The complaint is subject to dismissal. It appears plaintiff wishes to claim his constitutional rights were violated when he was shot during a March 31, 2018 police pursuit. However, plaintiff does not clearly explain how any named defendant was responsible for causing harm, and this Court will not assume facts he has not alleged. See Stone, 364 F.3d at 914-15. Additionally, plaintiff alleges no facts permitting the inference that the force used was excessive. Whether force is excessive under the Fourth Amendment requires a determination of whether the defendant officer’s actions are “objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015). Factors relevant to the reasonableness of an officer’s conduct include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”

Burnikel v. Fong, 886 F.3d 706, 710 (8th Cir. 2018). Law enforcement officers have a right to use some degree of force to effect a lawful seizure, Chambers v. Pennycook, 641 F.3d 898, 907 (8th Cir. 2011), and “it is not constitutionally unreasonable to use deadly force if an officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others.” Thompson v. Dill, 930 F.3d 1008, 1013 (8th Cir. 2019).

Regarding Hayden, it appears plaintiff intends to bring claims premised upon, inter alia, an alleged failure to train Frigerio. However, plaintiff alleges no facts demonstrating that any failure to train caused a constitutional violation, and his remaining allegations do not describe conduct that violated any of his federally-protected rights. Finally, plaintiff has named “Entire St. Louis Metropolitan Police Department” as a defendant, but it is unclear why he did so. He does not clearly indicate an intent to sue any individuals whose names are unknown, and the St. Louis Metropolitan Police Department itself is not an entity subject to suit under § 1983. See Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992).

Instead of dismissing this action at this time, the Court will give plaintiff the opportunity to file an amended complaint. 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.”). Plaintiff is advised he may not amend any complaint by filing separate documents. 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).

In the “Caption” section of the complaint form, plaintiff should write the name of the person he intends 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. 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 specific 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). The amended complaint will be subject to review pursuant to 28 U.S.C. § 1915(e)(2).

Plaintiff has also filed a motion to appoint counsel. The Court denies the motion. A pro se 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.” Id. (citing Johnson v. Williams, 788 F.2d 1319, 1322 (8th Cir. 1986)). Here, plaintiff has yet to file a complaint that survives initial review. Additionally, there is no indication that plaintiff is incapable of representing himself, nor does it appear this case involves matters that are legally or factually complex. However, recognizing that circumstances may change, the Court denies the motion without prejudice, and will entertain future motions seeking the appointment of counsel, if appropriate.

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’s Motion to Appoint Counsel (ECF No. 3) is DENIED without prejudice.

IT IS FURTHER ORDERED that, within thirty (30) days of the date of this order, plaintiff must pay an initial filing fee of $11.01. 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, within thirty (30) days of the date of this order, plaintiff must file an amended complaint in accordance with the instructions herein.

Plaintiff’s failure to timely comply with this order may result in the dismissal of this case, without prejudice and without further notice.

Dated this 13th day of July, 2021.

/s/ David D. Noce DAVID D. NOCE UNITED STATES MAGISTRATE JUDGE