Reed v. Precythe

Opinion

EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

TERRELL REED, ) ) Plaintiff, ) ) vs. ) Case No. 4:23-CV-887 RHH ) ANNE L. PRECYTHE, et al., ) ) Defendants. )

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on the motion of plaintiff Terrell Reed, an inmate currently housed at the Missouri Eastern Correctional Center, for leave to commence this civil action without prepayment of the required filing fee. [ECF No. 6]. 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 $61.76. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court will allow plaintiff the opportunity to submit an 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 Id.

In support of the instant motion for leave to commence this civil action without prepayment of the required filing fee, plaintiff submitted a certified copy of his inmate account statement. [ECF No. 7]. A review of plaintiff’s account indicates an average monthly deposit of $308.83. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $61.76, which is 20 percent of plaintiff’s average monthly deposit. Legal Standard on Initial Review Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 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 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.” 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 v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even self-represented 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 in order to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993). Background On July 10, 2023, fourteen inmates incarcerated at the Missouri Eastern Correctional Center (“MECC”), including plaintiff, filed a “class action” lawsuit. [ECF No. 1]. The 42 U.S.C. § 1983 complaint named six defendants affiliated with MECC. Defendants were accused of allowing the plaintiff-inmates to be restrained with plastic zip-ties for an excessive amount of time

while the Correctional Emergency Response Team (CERT) searched their housing unit. Only one of the plaintiff-inmates, David Wilson, signed the complaint, filed a motion to proceed in forma pauperis, and submitted a copy of his inmate account statement. Because the Court does not allow multiple prisoners to join together in a single lawsuit under Federal Rule of Civil Procedure 20, the complaint was severed and new cases opened for each individual plaintiff. See ECF No. 2. The instant case is one of the newly created cases brought by a severed plaintiff. On July 20, 2023, the Court issued an Order in this case finding the complaint defective for multiple reasons, including because it was not signed by plaintiff and because plaintiff lacks standing to bring claims on behalf of others. See ECF No. 3. As a result, the Court provided

instructions and directed plaintiff to file an amended complaint on a court-provided form. Id. The Court received self-represented plaintiff Terrell Reed’s amended complaint on August

9, 2023. [ECF No. 5]. Plaintiff indicates he is bringing this prisoner civil rights action pursuant to 42 U.S.C. § 1983 against Director Anne L. Precythe in her individual capacity and Warden Gregory Hancock in his official capacity. Although plaintiff used the court-provided form complaint, he wrote “see attachment” under the section designated for plaintiff to provide a short plain statement of facts to support his claims. Id. at 3. Attached to the amended complaint are a number of exhibits, from which the Court is apparently supposed to piece together his claims against defendants Precythe and Hancock. Discussion Because Plaintiff is proceeding in forma pauperis, the Court reviews his complaint under 28 U.S.C. § 1915. Based on that review, and for the reasons discussed below, the Court has

determined that plaintiff’s complaint is deficient and subject to dismissal. However, plaintiff will be given an opportunity to file an amended complaint according to the instructions set forth below. First, plaintiff’s complaint is deficient and subject to dismissal because he has not complied with Rule 8 of the Federal Rules of Civil Procedure, which provides “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiff has not presented a “short and plain statement.” Indeed, he has not presented any statement whatsoever, instead referring the Court to his exhibits. This does not comply with federal pleading rules. See Ackra Direct Marketing Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996) (“In general, pro se representation does not

excuse a party from complying with a court’s orders and with the Federal Rules of Civil Procedure”); Micklus v. Greer, 705 F.2d 314, 317 n.3 (8th Cir. 1983) (stating that the failure to comply with Fed. R. Civ. P. 8 made action subject to dismissal); and Cody v. Loen, 468 Fed. Appx. requires a short and plain statement showing the pleader is entitled to relief”).

As to defendant Warden Hancock, plaintiff brings this action against him in his official capacity only. In an official capacity claim against an individual, the claim is actually “against the governmental entity itself.” See White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017). Thus, a “suit against a public employee in his or her official capacity is merely a suit against the public employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). However, “neither a State nor its officials acting in their official capacity are ‘persons’ under § 1983.” Will, 491 U.S. at 71. See also Calzone v. Hawley, 866 F.3d 866, 872 (8th Cir. 2017) (a “suit for damages against a state official in his official capacity is a suit against the State, and the State is not a person under § 1983”). Moreover, in the absence of a waiver, the Eleventh Amendment bars suit against a state official acting in his or her official capacity. Morstad v. Dep’t of Corr. & Rehab., 147 F.3d

741, 744 (8th Cir. 1998). Here, defendant Hancock is alleged to be the Warden of MECC, which is part of the Missouri Department of Corrections, a state agency. For the reasons discussed above, plaintiff’s official capacity claim against him is really a claim against his employer. Thus, plaintiff’s official capacity claim is actually a claim against the State of Missouri. Such claims are barred because a state is not a “person” for purposes of § 1983, and because the Eleventh Amendment bars suits against state officials acting in their official capacity. As to defendant Anne Precythe, the Director of the Missouri Department of Corrections, Plaintiff brings this action against her in her individual capacity only. Individual liability in a 42

U.S.C. § 1983 case is personal. See Frederick v. Motsinger, 873 F.3d 641, 646 (8th Cir. 2017). In other words, “[g]overnment officials are personally liable only for their own misconduct.” S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015). As such, § 1983 liability “requires a causal link to, (8th Cir. 2006) (quoting Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990)). See also Kohl

v. Casson, 5 F.3d 1141, 1149 (8th Cir. 1993) (dismissing plaintiff’s excessive bail claims because none of the defendants set plaintiff’s bail, and therefore, “there can be no causal connection between any action on the part of the defendants and any alleged deprivation” of plaintiff’s rights); and Love v. Schoffman, 142 Fed. Appx. 278, 279 (8th Cir. 2003) (affirming pre-service dismissal under 28 U.S.C. § 1915 because the complaint, among other infirmities, “did not specify which of the many named defendants was responsible for each of the alleged harms”). To that end, a plaintiff must allege facts connecting the defendant to the challenged action. See Bitzan v. Bartruff, 916 F.3d 716, 717 (8th Cir. 2019). In this case, plaintiff has not presented any facts demonstrating a causal link between an action or inaction on the part of Director Precythe and the violation of his constitutional rights.

That is, plaintiff has not alleged that Precythe knew about the incident he complains of in his amended complaint/attachment while it was occurring, nor has he provided facts indicating that Precythe had anything to do with the incident. Not only has plaintiff failed to present facts demonstrating personal responsibility, but there is also no mention of Director Precythe in the “Statement of Claim” or the attachment. Aside from being named as a defendant in the case caption, and in the section of the form complaint for identifying the parties, she appears nowhere else. Simply placing a defendant’s name in the caption is not enough to assert their responsibility. See Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993) (agreeing with district court dismissal of two defendants who were named as defendants in the complaint, but who had no factual allegations

made against them); and Krych v. Hvass, 83 Fed. Appx. 854, 855 (8th Cir. 2003) (agreeing with district court dismissal of defendants who were merely listed in the complaint, and who were not alleged to have been personally involved in the constitutional violations). he has still failed to state a claim. That is to say, plaintiff has failed to establish the personal

responsibility of Precythe for harming him. “To state a claim against a supervisor, a plaintiff must show that the supervising official, through his [or her] own individual actions, violated the Constitution.” Morris v. Cradduck, 954 F.3d 1055, 1060 (8th Cir. 2020). As such, “[a] general responsibility for supervising the operations of a prison is insufficient to establish the personal involvement required to support liability.” Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995). See also Reynolds v. Dormire, 636 F.3d 976, 981 (8th Cir. 2011) (explaining that it is settled “general responsibility for supervising the operations of a prison is insufficient to establish personal involvement”). Here, as discussed above, plaintiff has not presented any facts showing that Director Precythe harmed him due to her actions or inactions. For all of these reasons, plaintiff has failed to state a claim against defendants Director

Precythe and Warden Hancock. In consideration of plaintiff’s self-represented status, the Court will permit him the opportunity to file an amended complaint. Amendment Instructions Plaintiff is warned that the filing of an amended complaint completely replaces the original complaint 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 supersedes an original complaint and renders the original complaint without legal effect”). Plaintiff must type or neatly print the amended complaint on the Court-provided prisoner civil rights complaint form, which will be provided to him. See E.D. Mo. L.R. 45 – 2.06(A) (“All

actions brought by self-represented plaintiffs or petitioners should be filed on Court-provided forms”). to the extent he knows it, of each defendant he wishes to sue. See Fed. R. Civ. P. 10(a) (“The title

of the complaint must name all the parties”). All the defendants must be clearly listed. 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: (1) set forth a short and plain statement of the factual allegations supporting his claim against that specific defendant; and (2) state what constitutional or federal statutory right(s) that defendant violated. Each averment must be simple, concise, and direct. See Fed. R. Civ. P. 8(a). If plaintiff is 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. No introductory or conclusory paragraphs are necessary. 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). Plaintiff’s 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, 909 F.2d at 1208 (stating that § 1983 liability “requires a causal link to, and direct responsibility for, the 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.”). Plaintiff must not amend a complaint by filing separate documents. Instead, he must file a single, comprehensive pleading that sets forth his claims for relief. Plaintiff must also be careful to fill out the Court-provided complaint form in its entirety, including the “Injuries” and “Relief” sections. There is no constitutional violation where an inmate cannot show he suffered an injury or adverse health consequence. See Seltzer-Bey v. Delo, 66 F.3d 961, 964 (8th Cir. 1995). “Claims under the Eighth Amendment require a compensable injury to be greater than de minimis.” Irving v. Dormire, 519 F.3d 441, 448 (8th Cir. 2008). “While a serious injury is not necessary, some actual injury is required in order to state an Eighth Amendment

violation.” White v. Holmes, 21 F.3d 277, 281 (8th Cir. 1994). If plaintiff fails to file an amended complaint on a Court-provided form within thirty (30) days in accordance with the instructions set forth herein, the Court may dismiss this action without prejudice and without further notice to plaintiff. Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [ECF No. 6] is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $61.76 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) the statement that the remittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff a blank Prisoner Civil Rights Complaint form. Plaintiff may request additional forms as needed. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on the Court- provided form in accordance with the instructions stated above within thirty (30) days of the date of this Order. Plaintiff is advised that his amended complaint will take the place of his original filing and will be the only pleading that this Court will review. IT IS FURTHER ORDERED that plaintiff's failure to comply with this Order in all aspects may result in a dismissal of this action, without prejudice. Dated this 3" day of November, 2023.

UNITED STATES DISTRICT JUDGE

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