Kovach v. Precythe

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION RONALD ERIC KOVACH, ) ) Plaintiff, ) ) v. ) No. 4:21-cv-537-ACL ) ANNE L. PRECYTHE, ) ) Defendant. ) MEMORANDUM AND ORDER This matter is before the Court upon review of a fee-paid complaint filed by Ronald Eric Kovach, a prisoner. For the reasons explained below, the Court will give plaintiff the opportunity to file an amended complaint. The Court will also deny without prejudice plaintiff’s motions seeking the appointment of counsel. Legal Standard Pursuant to 28 U.S.C. § 1915A(a), this Court “shall review before docketing if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” Upon such review, this Court shall dismiss the complaint or any portion thereof if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(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). 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 against Anne L. Precythe, the Director of the Missouri Department of Corrections (“MDOC”). He does not specify the capacity in which he sues Precythe. The Court therefore interprets the complaint as including only official-capacity claims. See Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995) (“If a plaintiff’s complaint is silent about the capacity in which she is suing the defendant, [courts] interpret the complaint as including only official-capacity claims.”). Plaintiff invokes this Court’s federal question jurisdiction, and he can be understood to bring claims pursuant to 42 U.S.C. § 1983. Section 1983 was designed to provide a “broad remedy for violations of federally protected civil rights.” Monell v. Department of Social Services, 436 U.S. 658, 685 (1978). Section 1983 provides no substantive rights; it merely provides a remedy

for violations of all “rights, privileges, or immunities secured by the Constitution and laws [of the United States].” 42 U.S.C. § 1983; see also Albright v. Oliver, 510 U.S. 266, 271 (1994) (42 U.S.C. § 1983 “merely provides a method for vindicating federal rights elsewhere conferred”). To state a claim under 42 U.S.C. § 1983, a plaintiff must establish: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged deprivation of that right was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). In the complaint at bar, plaintiff sets forth his statement of claim as follows: ON GOING INCIDENTS OF ELDER ABUSE. PHYSICAL, MENTAL AND EMOTIONAL ELDER ABUSE BETWEEN MAY 2017 THRU THE PRESENT DAY. ALL INFLICTED BY NUMEROUS AND VARIOUS EMPLOYEES/STAFF OF MISSOURI DEPARTMENT OF CORRECTIONS. MEDICAL NEGLECT AND MEDICAL MALPRACTICE BY MO DOC CONTRACTOR CORIZON.

(ECF No. 1 at 4) (emphases in original). Plaintiff describes his injuries as stress and tension that have led to a heart ailment, suicide attempts, and hospitalization. He seeks monetary relief. Discussion Plaintiff’s official-capacity claims for damages against Anne Precythe are barred. See Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997) (holding that a § 1983 damages claim against a state official acting in his official capacity is barred, either by the Eleventh Amendment or because, in such capacity, he is not a “person” capable of being sued). Even if plaintiff had sued Precythe in her individual capacity, his claims would fail. Plaintiff offers only vague allegations of elder abuse, medical neglect, and medical malpractice. He fails to allege even the most basic of facts, such as what wrongful conduct amounted to abuse or neglect. At best, plaintiff’s allegations are legal conclusions that are not entitled to the presumption of truth. The complaint is therefore subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). See Stone, 364 F.3d at 914 (while pro se complaints must be construed liberally and additional details may be exposed later after

discovery, the complaint must still allege sufficient facts to support the claims advanced). The Court will not dismiss this action at this time, and will instead give plaintiff an 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 . . . should be filed on Court-provided forms where applicable.”). 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 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). Plaintiff is advised he may not amend a complaint by filing separate documents containing

changes he wishes made to certain parts. Instead, he 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 two motions seeking the appointment of 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.” /d. (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. /d. (citing Phillips, 437 F.3d at 794). In this case, plaintiff has not established his indigency, and the Court is not convinced he has stated a non-frivolous claim. Additionally, based upon the complaint and both of the instant motions, there is no indication plaintiff is incapable of presenting his claims to the Court. However, recognizing that circumstances may change, the Court will deny the motions for appointment of counsel without prejudice, and will entertain future such motions, if appropriate, as the case progresses. Accordingly, IT IS HEREBY 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. IT IS FURTHER ORDERED that plaintiff’s motions seeking the appointment of counsel (ECF Nos. 4 and 7) are DENIED without prejudice. Plaintiffs failure to timely comply with this order may result in the dismissal of this case, without prejudice and without further notice. Dated this 13 day of August, 2021. (Unt. bite Leone) ABBIECRITES-LEONI] — UNITED STATES MAGISTRATE JUDGE