Hopkins v. Precythe

• Court: District Court, E.D. Missouri
• Decided: December 2, 2021
• Docket: 4:21-cv-01095
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

JESSE A. HOPKINS, ) ) Plaintiff, ) ) v. ) No. 4:21-CV-1095-RWS ) AMY PRECYTHE, et al., ) ) Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on the motion of plaintiff Jesse A. Hopkins, an inmate at the Eastern Reception, Diagnostic and Correctional Center (“ERDCC”), for leave to commence this civil action without prepaying fees or costs. The Court will grant the motion, and assess an initial partial filing fee of $1.00. 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 $255.16. The statement also shows that plaintiff’s account is regularly debited to satisfy an outstanding debt. In a letter attached to the complaint, plaintiff avers

he has outstanding debt of $130.00, and no money currently in his account. Based upon plaintiff’s statement, it appears he would be unable to pay an initial partial filing fee of 20 percent of the average monthly deposits in his account. The Court will therefore assess an initial partial filing fee of $1.00. Legal Standard on Initial Review This Court is required to review complaint filed in forma pauperis, and must dismiss it if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). 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 the mistakes of those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993). The Complaint Plaintiff did not prepare the complaint on a Court-provided form, as required. 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.”). He avers he brings this action pursuant to 42 U.S.C. § 1983, and identifies the defendants as “Amy Precythe”1 and “et al.” Within the complaint, he indicates an intent to also sue David Vandergriff, the ERDCC Warden. Plaintiff does not specify the capacity in which he sues any individual who can be identified as a defendant. Plaintiff identifies his claims as “prison abuse” and “deliberate indifference,” and sets forth a long narrative describing alleged misconduct at ERDCC and within the Missouri Department of Corrections (“MDOC”) as a whole. For example, plaintiff states Precythe and Vandergriff allow

1 It appears plaintiff may have intended to sue Anne Precythe, the Director of the Missouri Department of Corrections. members of the “Family Values” gang to engage in various forms of wrongdoing at the ERDCC and in the MDOC generally, causing injury to MDOC inmates and staff. Plaintiff states he is a target of the Family Values gang because he belongs to a rival gang. He writes: “ERDCC staff have even put [Family Values] gang members in his cell and [plaintiff] was forced to protect himself by fighting to the near death.” Finally, plaintiff claims he has been placed in

Administrative Segregation in violation of his Eighth Amendment rights. As relief, plaintiff asks this Court to compel “the Respondents” to segregate gang members from the general population in the MDOC “in order to protect the weak and outnumbered from the violent many.” Discussion It appears plaintiff filed the complaint, at least in part, to bring claims on behalf of MDOC inmates and staff generally. However, plaintiff lacks standing to bring claims on behalf of others. See Warth v. Seldin, 422 U.S. 490, 499 (1975) (stating that to satisfy the standing requirement, a plaintiff “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties”). Additionally, there is no indication that plaintiff is a

licensed attorney. While a non-attorney pro se litigant may represent himself in federal court, he may not represent someone else. See 28 U.S.C. § 1654 (stating that in all United States courts, “the parties may plead and conduct their own cases personally or by counsel”) and Lewis v. Lenc–Smith Mfg. Co., 784 F.2d 829, 830 (7th Cir. 1986) (a person who is not licensed to practice law may not represent another individual in federal court). Therefore, to the extent plaintiff seeks to assert claims on behalf of others, the complaint is subject to dismissal. The Court now addresses the claims plaintiff can be understood to assert on his own behalf. First, plaintiff can be understood to claim his Eighth Amendment rights were violated when “ERDCC staff” placed rival gang members in his cell. The Eighth Amendment imposes a duty on prison officials to protect prisoners from violence at the hands of other prisoners. Perkins v. Grimes, 161 F.3d 1127, 1130 (8th Cir. 1998) (citing Farmer v. Brennan, 511 U.S. 825, 833 (1994)). However, only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. Farmer, 511 U.S. at 834. Therefore, a prison official violates the Eighth Amendment if he or she “acts with deliberate indifference to a substantial risk of harm to the prisoner.” Perkins,

161 F.3d at 1130 (citing Farmer, 511 U.S. at 834). Deliberate indifference has both an objective and a subjective component. The objective component requires the prisoner to demonstrate a substantial risk of serious harm, and the subjective component requires the prisoner to show that the official had a culpable state of mind; that is, that he actually knew of, but disregarded, that risk. Blades v. Schuetzle, 302 F.3d 801, 803 (8th Cir. 2002) (quoting Perkins, 161 F.3d at 1130). With respect to the subjective component, the official must be aware of facts from which he could infer the existence of a substantial risk of serious harm, and he must also draw the inference. Farmer, 511 U.S. at 837. Even if plaintiff could establish the objective element, his Eighth Amendment claim would

fail because his allegations do not demonstrate that Precythe, Vandergriff, or any other prison official was aware of facts from which she or he could infer the existence of a substantial risk of serious harm to plaintiff, and drew that inference. Additionally, plaintiff’s complaint cannot proceed against the defendants he has identified as “et al.” and “ERDCC staff” because he has not made specific allegations to permit identification of any particular individual after reasonable discovery. See Phelps v. United States, 15 F.3d 735, 739 (8th Cir. 1994) (generally, fictitious parties may not be named as defendants in a civil action); Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985) (an action may proceed against a party whose name is unknown if the complaint makes sufficiently specific allegations to permit identification of the party after reasonable discovery). Next, plaintiff can be understood to claim his Eighth Amendment rights were violated when he was placed in Administrative Segregation. Confinement in segregation is subject to scrutiny under the Eighth Amendment. Hutto v. Finney, 437 U.S. 678, 685 (1978). To establish a conditions of confinement claim under the Eighth Amendment, a prisoner must demonstrate (1) that the alleged deprivation was “objectively, sufficiently serious” to result in the “denial of the

minimal civilized measure of life’s necessities,” and (2) that the defendant whose act or omission caused the alleged constitutional deprivation behaved with “deliberate indifference to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Here, the complaint fails to state a plausible Eighth Amendment claim premised upon plaintiff’s placement in segregation because it contains no facts permitting the inference that plaintiff suffered a sufficiently serious deprivation. The Eighth Circuit has stated that an assignment to disciplinary or administrative segregation is not, in and of itself, an atypical and significant hardship. See Portley-El v. Brill, 288 F.3d 1063, 1065 (8th Cir. 2002) (stating that Eighth Circuit has “consistently held that administrative and disciplinary segregation are not atypical and significant hardships under Sandin”). Plaintiff also

fails to identify the person(s) whose act or omission caused the alleged harm. For the foregoing reasons, the complaint is subject to dismissal. However, the Court will not dismiss this action at this time, and will instead give plaintiff the chance 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). 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 whether he sues the defendant in an individual capacity, official capacity, or both. 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). Finally, plaintiff is advised he may not amend a complaint by filing separate documents containing changes he wants made. 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).

Plaintiff has also filed a motion to appoint counsel. 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)). When determining whether to appoint 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. Id. (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, plaintiff has yet to file a complaint that survives review under 28 U.S.C. § 1915(e)(2), and it therefore cannot be said plaintiff has stated a non-frivolous claim. However, recognizing that circumstances may change, the Court will deny the motion for appointment of counsel without prejudice, and will entertain future such motions, if appropriate, as the case 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's Motion to Appoint Counsel (ECF No. 4) 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 $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) the case number; and (4) the statement that the remittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall 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 2nd day of December, 2021.

UNITED STATES DISTRICT JUDGE