Oliver v. Pemiscot County Jail

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION ANDRE OLIVER, ) Plaintiff, Vv. Case No. 1:21-CV-126 SNLJ PEMISCOT COUNTY JAIL and SCOTTY WALKER, ) Defendants.

MEMORANDUM AND ORDER Self-represented Plaintiff Andre Oliver 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. ECF No. 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 $1.00. See 28 U.S.C. §1915(b)(1). For the reasons stated below, the Court will give Plaintiff an opportunity to file an amended complaint in an attempt to cure pleading deficiencies. However, Plaintiff's motion for appointment of counsel will be denied without prejudice at this time.

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 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 the prisoner’s account. 28 US.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. Jd.

Plaintiff is a pretrial detainee at Pemiscot County Jail. ECF No. 1 at 2. Plaintiff's motion to proceed without prepaying fees or costs states that he has no job, no income, no assets, and no money in his prison account. ECF No. 2 at 1-2. Although the form motion states that an inmate must submit a certified prison account statement, Plaintiff has not done so. In consideration of the financial information submitted, the Court will require Plaintiff to pay an initial partial filing fee of $1.00. See Henderson vy. 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 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).

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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 claim for relief, which is more than a “mere possibility of misconduct.” /d. at 679. “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.” /d 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. /d. at 679.

The Complaint Plaintiff brings this action under 42 U.S.C. § 1983, alleging violations of his civil rights against the Pemiscot County Jail and Scotty Walker, a jailer at Pemiscot County Jail. ECF No. 1 at 1-3. Plaintiff brings his claims against Walker in his individual capacity only. /d. at 3.

According to Plaintiff, he tested positive for COVID-19 while being detained at the Jail. Id. at 4. At some later unspecified date, Plaintiff filed a grievance “for [his] mental health” and because he was still feeling “sickly.” Plaintiff was given ibuprofen. Plaintiff complains that ibuprofen was not enough to treat his health problems.

On August 7th, Plaintiff filed a second grievance against jailer Scotty Walker, after Walker tasered him in the chest and sprayed mace in his face. Plaintiff alleges that the treatment was unjustified, as he was only “trying to vent and cope about [his] mental health” and asking for help.

Plaintiff states that he was in “deep pain” and “very sickly” but that he was “never got aggressive _2. or showed any type of anger.” Jd. However, later in his complaint, Plaintiff admits that he “was told to lockdown but [he] wasn’t a threat to anyone.” □□□ at 6.

Plaintiffs alleged injuries are unclear. Plaintiff describes his chest as “sour,” states that he is having “problems breathing,” and that his eyesight “isn’t the same.” However, he also states that he “complained about [his] chest and eyes right before the other incident happen[ed].” The Court believes that the “other incident” is the tasering and mace spraying by jailer Walker. In which case, it is not clear if Plaintiff had any injuries from the Walker incident, or if his health problems are a result of COVID-19 and predated the encounter with Walker.

Plaintiff's requested relief is also unclear. He states that he feels “entitled to recover’ but he doesn’t state what it is that he wants to recover — either in the ‘Relief’ section of his complaint or on the Civil Cover Sheet (which he left blank except for his name). ECF Nos. 1 at 5, 1-1.

Discussion Defendant Pemiscot County Jail is not a suable entity under 42 U.S.C. § 1983 and Plaintiff's complaint fails to adequately allege a claim of deliberately indifferent medical care.

However, based on a careful review and liberal construction of Plaintiff's allegations against Defendant Scotty Walker, Plaintiff's excessive force allegations could state a valid claim after some clarification of the pleadings. As such, Plaintiff is directed to file an amended complaint on the court-provided form and in compliance with the instructions set out below.

I. Defendant Pemiscot County Jail Plaintiff's claims as to defendant Pemiscot County Jail are subject to dismissal for failure to state a claim because jails and local government detention centers are not suable entities under 42 U.S.C. § 1983. Owens v. Scott Cnty. Jail, 328 F.3d 1026, 1027 (8th Cir. 2003) (affirming dismissal of § 1983 claim because “county jails are not legal entities amenable to suit.”); De La Garza v. Kandiyohi Cnty. Jail, Corr. Inst., 18 F. App’x 436, 437 (8th Cir. 2001) (holding that _A. neither county jail nor sheriff's department is a suable entity under § 1983); see also Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (holding that departments or subdivisions of local government are “not juridical entities suable as such” under § 1983).

According to the Eighth Circuit, “pro se status does not excuse [Plaintiff's] failure to name the proper parties.” Jackson vy. Mo. Bd. of Prob. & Parole, 306 F. App’x 333, 333 (8th Cir. 2009). As such, Plaintiff's complaint fails to state a valid § 1983 claim as to defendant Pemiscot County Jail.

I. Deliberately Indifferent Medical Care Claims Plaintiff seems to be asserting a claim of deliberately indifferent medical care when he claims that the Jail “doesn’t give any right medical attention” and that his health problems have been inadequately treated with ibuprofen. The Fourteenth Amendment’s Due Process Clause is used to evaluate 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) (citing Bell v. Wolfish, 441 U.S. 520 (1979)). However, this makes little difference as both pretrial detainees and convicted prisoners have the Constitutional protection of the Eighth Amendment. 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 County, 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 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 og (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 U.S. 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 an Eighth Amendment 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). 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).

In this case, Plaintiffs treatment-with-only-ibuprofen allegations fail to state a deliberate indifference claim. A prisoner’s disagreement with medical staff’s decision to offer him over-the- counter medications, rather than prescription medication, does not constitute deliberate -6- indifference. Johnson v. Leonard, 929 F.3d 569, 576 (8th Cir. 2019); see also Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997) (“[I]nmates have no constitutional right to receive a particular or requested course of treatment, and prison doctors remain free to exercise their independent medical judgment.”).

Furthermore, Plaintiff does not specify who exactly denied him adequate medical attention.

“Liability under § 1983 requires a causal link to, and direct responsibility for, the deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (to be cognizable under § 1983, a claim must allege that the defendant was personally involved in or directly responsible for the incidents that deprived the plaintiff of his constitutional rights). As discussed above, Pemiscot County Jail is not a suable entity under § 1983. The only other named defendant, jailer Scotty Walker, is not alleged to have anything to do with Plaintiffs allegedly inadequate medical care.

For all of these reasons, Plaintiff's complaint fails to state a valid claim of deliberately indifferent medical care against any named defendant.

III. Defendant Scotty Walker: Excessive Force Claims The Due Process Clause of the Fourteenth Amendment protects pretrial detainees from “the use of excessive force that amounts to punishment.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (citing Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). Pretrial detainees are entitled to greater protection than convicts because they cannot be punished prior to an adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 535 (1979), Walton v. Dawson, 752 F.3d 1109, 1117 (8th Cir. 2014). 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).

In order to prevail on an excessive force claim, a plaintiff must show that a defendant purposely or knowingly used objectively unreasonable force. Kingsley, 135 S. Ct. at 2473.

“Whether the application of force is unreasonable turns on the facts and circumstances of each particular case.” Ryan v. Armstrong, 850 F.3d 419, 427 (8th Cir. 2017) (internal quotations and citations omitted). “Factors relevant to assessing the objective reasonableness of force used by officers include: the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Jd. (citing Kingsley, 135 S. Ct. at 2473).

Here, Plaintiff does not provide enough factual allegations to suggest that the force used by Walker was purposely or knowingly unreasonable. Plaintiff alleges that Walker tasered him in the chest and sprayed mace in his face. Plaintiff alleges that at the time, he was not acting aggressively, threatening anyone, or acting out in anger. But he also indicates that Walker’s actions were the result of Plaintiff failing to “lockdown” when told to do so.

The only factor directly addressed by Plaintiff was that he was not actively resisting.

Otherwise, the remaining relevant factors for assessing objective reasonableness are unclear from the facts plead. It is unclear what instigated the need to lockdown, the severity of the security problem at that time, and what threat could have been reasonably perceived by Walker. It is also unclear whether Walker warned Plaintiff or applied a more limited amount of force before resorting to a taser and mace. Similarly, it is unclear whether Plaintiff suffered any injuries from his encounter with Walker or if Plaintiff's complained-of injuries resulted from his COVID illness.

Plaintiff should clarify the details of his encounter with Walker in his amended complaint, so that the Court can determine whether he has adequately plead an excessive force claim.

IV. Instructions on Amendment Plaintiff should file an amended complaint on the court-provided form in an attempt to cure the pleading deficiencies discussed above. Plaintiff is advised that the filing of an amended complaint completely replaces the original complaint and all supplements, and so it must include all claims Plaintiff wishes to bring. 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”). Any claims from the original complaint or any supplements that are not included in the amended complaint will be deemed abandoned and will not be considered. /d. Plaintiff must type or neatly print the amended complaint on the Court-provided prisoner civil rights complaint form, and the amended complaint must comply with the Federal Rules of Civil Procedure. See E.D. Mo. L.R. 2.06(A).

The Federal Rules of Civil Procedure require litigants to formulate their pleadings in an organized and comprehensible manner. Even self-represented litigants are obligated to abide by the Federal Rules of Civil Procedure and to plead specific facts as to each named defendant. See U.S. v. Wilkes, 20 F.3d 651, 653 (Sth Cir. 1994). Plaintiff is required to set out his alleged claims in a simple, concise, and direct manner, and also the facts supporting his claims as to each named defendant. See Fed. R. Civ. P. 8(a)(2) (complaint should contain short and plain statement of claims); 8(d)(1) (each claim shall be simple, concise, and direct); 10(b) (parties are to separate their claims within their pleadings and the contents of which shall be limited as far as practicable to a single set of circumstances). Plaintiff should fill out the complaint form in its entirety.

In the “Caption” section of the complaint form, Plaintiff must state the first and last name, to the extent he knows it, of the defendant or defendants he wants to sue. See Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the parties”). If there is not enough room in the caption, Plaintiff may add additional sheets of paper. However, all the defendants must be clearly listed.

Oo) _ Plaintiff should also indicate whether he intends to sue each defendant in his or her individual capacity, official capacity, or both. Plaintiff should avoid naming anyone as a defendant unless that person is directly related to his claim(s).

In the “Statement of Claim” section, Plaintiff should begin by writing a defendant’s name.

In separate, numbered paragraphs under that name, Plaintiff should write the specific facts supporting his claim or claims against that defendant. If Plaintiff suing more than one defendant, he should proceed in the same manner with each one, separately writing each individual defendant’s name and, under that name, in numbered paragraphs, the factual allegations supporting his claim or claims against that defendant. Plaintiff 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). Alternatively, Plaintiff may choose a single defendant, and set forth as many claims as he has against him or her. See Fed. R. Civ. P. 18(a). Plaintiffs failure to make specific factual allegations against any defendant will result in that defendant’s dismissal. 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).

If Plaintiff is suing a defendant in an individual capacity, he is required to allege facts demonstrating the personal responsibility of the defendant for harming him. Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (stating that § 1983 liability “requires a causal link to, and direct responsibility for, the deprivation of rights”). It is not enough for Plaintiff to refer to a group of defendants and make general allegations against them. Instead, Plaintiff must explain the role of each defendant so that each 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) an. (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.”).

Appointment of Counsel Finally, Plaintiff has filed a motion for appointment of counsel. ECF No. 3. The appointment of counsel for an indigent plaintiff in a civil matter lies within the discretion of the Court. Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). There is no constitutional or statutory right to appointed counsel in civil cases. Nelson vy. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). Once the plaintiff has alleged a prima facie claim, the Court must determine the plaintiff's need for counsel to effectively litigate his claim. /n re Lane, 801 F.2d 1040, 1043 (8th Cir. 1986). The standard for appointment of counsel in a civil case is whether both the plaintiff and the Court would benefit from the assistance of counsel. Edgington v. Mo. Dep’t of Corr., 52 F.3d 777, 780 (8th Cir. 1995), abrogated on other grounds by Doe v. Cassel, 403 F.3d 986, 989 (8th Cir. 2005). This determination involves the consideration of several relevant criteria, including “the factual complexity of the issues, the ability of the indigent person to investigate the facts, the existence of conflicting testimony, the ability of the indigent person to present the claims, and the complexity of the legal arguments.” Phillips, 437 F.3d at 794 (citing Edgington, 52 F.3d at 780).

In this matter, the Court finds that appointment of counsel is not warranted at this time.

The action appears to involve straightforward questions of fact rather than complex questions of law. Further, the request for counsel is premature, as a defendant has not yet been served, and the Court has not issued any Case Management Order. The Court concludes that the appointment of counsel would not be of sufficient benefit to the Court or to Plaintiff at this time, and will deny Plaintiff's motion for appointment of counsel, without prejudice.

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Conclusion Plaintiff's motion to proceed in forma pauperis will be granted. However, Plaintiff shall file an amended complaint on the Court-provided form within thirty (30) days in accordance with the instructions set forth herein. If Plaintiff fails to do so, the Court may dismiss this action without prejudice and without further notice to Plaintiff. Because Plaintiff is proceeding in forma pauperis, Plaintiff is warned that his amended complaint will also be reviewed pursuant to 28 U.S.C. § 1915(e)(2)(B). At this stage in the proceeding, Plaintiff's motion for appointment of counsel in this civil matter will be denied, subject to refiling at a later date.

Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion to proceed in forma pauperis [ECF No. 2] is GRANTED.

IT IS FURTHER ORDERED that the Plaintiff shall 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) that the remittance is for an original proceeding.

IT IS FURTHER ORDERED that the Clerk of Court shall mail to Plaintiff a blank 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 shall file an amended complaint on the Court-provided form and in compliance with the Court’s instructions.

IT IS FURTHER ORDERED that upon submission of the amended complaint, the Court shall again review this action pursuant to 28 U.S.C. §1915.

IT IS FINALLY ORDERED that Plaintiff's motion for appointment of counsel [ECF No. 3] is DENIED without prejudice.

~19-_ Plaintiff's failure to timely comply with this Order shall result in the dismissal of this action, without prejudice and without further notice.

Dated this _” tH ‘day of December, 2021.

STEPHEN N. LIMBAUGH, JR. SENIOR UNITED STATES DISTRICT JUDGE -13-