Payton v. Precythe

• Court: District Court, E.D. Missouri
• Decided: September 24, 2021
• Docket: 2:21-cv-00042
• Status: Unknown

Opinion

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI NORTHERN DIVISION / LEROY PAYTON, ) Plaintiff, WV. No. 2:21-cv-42-JAR ANNE L. PRECYTHE, et al., Defendants.

MEMORANDUM AND ORDER This matter is before the Court on the motion of plaintiff Leroy Payton, an inmate at the Northeast Correctional Center (““NECC”), 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 $5.03. Additionally, for the reasons discussed below, the Court will give plaintiff the opportunity to filean amended complaint. — 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. Jd. In support of the instant motion, plaintiff submitted an inmate account statement showing an average monthly deposit of $25.15, and an average monthly balance of $22.64. The Court will therefore assess an initial partial filing fee of $5.03, which is twenty percent of plaintiff's average monthly deposit. 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.” Jgbal, 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. /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.” Jd. at 678 (citing Twombly, 550 US. 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 vy. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone y 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 Anne L. Precythe (the Director of the Missouri Department of Corrections), Dan Redington (the Warden of NECC), and “Unknown Bubble Officer.” Plaintiff sues the defendants in their individual capacities. He alleges as follows. On the evening of August 31, 2020 in the dayroom of “9 house” at the NECC, plaintiff was attacked by a fellow inmate named James Cook. (ECF No. 1 at 3). Plaintiff writes: As an immediate security risk, policy and procedure mandates administrative segregation confinement. From medical, we were escorted to segregation confinement and issued a conduct violation by COI Tim Kirks. Administration was alerted, immediately setting a cause to activate safety and security policies and procedures to protect those involved. Three days later on 9/3/20 those policies and procedures were breached . . . An unwaived enemy Cook, James was assigned to my confinement cell. It’s when I was assaulted with a tray. □ (ECF No. 1 at 3, 5). Plaintiff references defendant Unknown Bubble Officer, and states he was “the undisclosed bubble officer who neglected to follow safety and security policies and

procedures when pion inmates to cells.” Jd at 5. Plaintiff claims Precythe “is legally responsible for the overall operations of the Department and each institution under its □ jurisdiction,” and Redington “is responsible for the operations of the prison and for the welfare of the inmates.” Id Plaintiff suffered injury to his right wrist and hand, and mental anguish. He writes: “asa certified author, the injuries caused to my hand by the tray has affected my productivity, "rendering the use of it limited as I still take pain pills issued by medical.” Jd. Plaintiff then states he “received inadequate medical treatment as I sat in confinement where my hand healed improperly while waiting to see x-ray doctor.” Id. He seeks damages totaling $210,000. Discussion It is apparent that plaintiff intends to bring an Eighth Amendment failure-to-protect claim. 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, “not . .. every injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison □ officials responsible for the victim’s safety.” Farmer, 511 U.S. at 834. Only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. Jd. (internal citations omitted). Therefore, a prison official violates the Eighth Amendment if he or she “acts with deliberate indifferencé to a substantial risk of harm to the prisoner.” Perkins, 161 F.3d at 1130 (citing Farmer, 511 U.S. at 834). The test for deliberate indifference has both an objective and a subjective peers To

_ establish the objective component, a plaintiff must show he faced a substantial risk of serious harm, and to establish the subjective component, he must show that the prison official had a

culpable state of mind; that is, that he actually knew of, but deliberately disregarded, that risk. Blades v. Schuetzle, 302 F.3d 801, 803 (8th Cir. 2002) (quoting Perkins, 161 F.3d at 1130). In the case at bar, the Court will presume that plaintiff has established the objective component: a / substantial risk of serious harm. However, plaintiff has alleged no facts that would establish that any prison official actually knew of, and yet deliberately disregarded, that risk. It appears plaintiff may also intend to bring an Eighth Amendment claim premised upon denial of adequate medical care. To establish that a denial of medical care rises to the level of an Eighth Amendment violation, a plaintiff must plead facts that show that the defendant acted with deliberate indifference. Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011). As noted above, test for deliberate indiffetence has both an objective and a subjective component. □ In this context, to establish the objective component, a plaintiff must show he suffered from an objectively “serious medical need.” Jd. 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.” Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) (internal citation omitted). To establish the subjective component, a plaintiff must show that the defendant actually knew of, and yet deliberately disregarded, that need, Schaub, 638 F.3d at 914. In the case at bar, the Court will presume that the complaint sufficiently establishes that plaintiff had an objectively serious medical need. However, plaintiff - has not demonstrated that any prison official actually knew of, and yet deliberately disregarded, that need. In sum, the complaint fails to state a claim upon which relief may be granted, and is subject to dismissal. While pro se complaints are to be liberally construed, they must contain. sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.

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Igbal, 556 U.S. at 678. This Court will not assume facts plaintiff has not alleged. See Stone, 364 B3d at 914. However, the Court will not dismiss this action at this time, and will instead □□□ plaintiff the opportunity to file an amended complaint. 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 □□ 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. LR. 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 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. 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 causing harm. See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (citations omitted). 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, 348 (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 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.” Jd. (citing Johnson v. Williams, 788 F.2d 1319, 1322 (8th Cir. 1986)). When determining whether to appoint counsel for an indigent litigant, courts consider relevant factors such as the factual complexity of the issues, the litigant’s ability to investigate the facts and present his claims, any conflicting

testimony, and the complexity of the legal arguments. Jd. (citing Phillips, 437 F.3d at 794). In this case, it cannot be said at this time that plaintiff has stated a non-frivolous claim. Additionally, there is no medication 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. 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. Accordingly, IT IS HEREBY ORDERED that plaintiffs motion seeking leave to commence this action without prepaying fees or costs (ECF No. 3) is GRANTED. IT IS FURTHER ORDERED that, within thirty (30) days of the date of this order, plaintiff must pay an initial filing fee of $5.03. 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. IT IS FURTHER ORDERED that plaintiff's Motion to Appoint Counsel (ECF No. 2) is DENIED without prejudice. 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 Ws of September, 2021.

J als f ROSS D STATES DISTRICT JUDGE