Rhodes v. Williams

• Court: District Court, E.D. Missouri
• Decided: January 12, 2023
• Docket: 1:22-cv-00164
• Status: Unknown

Opinion

EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION

ANDRAE RHODES, ) ) Plaintiff, ) ) vs. ) Case No. 1:22-CV-164 SNLJ ) AMY WILLIAMS, et al., ) ) Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on the motion of self-represented plaintiff Andrae Rhodes, an inmate at Moberly Correctional Center, for leave to commence this civil action without prepayment of the required filing fee. ECF No. 2. The Court has determined to grant the motion, and assess an initial partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court will give plaintiff the opportunity to file an amended complaint, and will deny, at this time, his motion seeking the appointment of 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 Id.

Plaintiff filed his motion for leave to proceed in forma pauperis without providing a certified copy of his inmate account statement. On December 8, 2022, the Court directed plaintiff to submit such a statement within thirty days. ECF No. 4. On December 30, 2022, plaintiff sent a letter to the Court explaining that on the “2nd week of December” he requested a copy of his inmate account statement from Moberly Correctional Center, but is “having issues” getting the requested information. The Court will therefore assess an initial partial filing fee of $1.00, an amount that is reasonable based upon the information before the Court. See Henderson v. 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.”). 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 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 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). The Complaint Plaintiff filed the instant action on a Court-provided Prisoner Civil Rights Complaint form pursuant to 42 U.S.C. § 1983. ECF No. 1. At all times relevant to this action, plaintiff appears to have been housed at the Cape Girardeau County Sheriff’s Office Jail. Plaintiff brings this action against three defendants: (1) Correctional Officer Amy Williams in her individual capacity; (2) Jail Administrator Richard Rushin in his official and individual capacities; and (3) the Cape Girardeau County Sheriff’s Office Jail (the “Jail”). Id. at 1-3. Plaintiff alleges, on March 10, 2022 at approximately 9:45 p.m., defendant Amy Williams tazed him multiple times “between [his] legs and other places” “after [he] started complying” and

“while [he] was having seizures.” Id. at 3. After being tazed, plaintiff asserts defendant Williams did not provide him with medical attention. Plaintiff further claims that defendant Richard Rushin “didn’t try to resolve the issue” and “didn’t inform the federal supervisor . . . about the incident.” proper[ly] in safety procedures[.]” Id.

Plaintiff describes his injuries as “multiple seizures, dislocated toe, constant swelling, mental fears, [and] burn marks.” Id. at 4. For relief, plaintiff seeks $400,000. Discussion Having thoroughly reviewed and liberally construed plaintiff’s complaint, the Court concludes it is subject to dismissal. However, in consideration of plaintiff’s self-represented status, the Court will allow him to submit an amended complaint. A. Claim against defendant Cape Girardeau County Sheriff’s Office Jail The complaint is frivolous as to the Jail because it has no independent legal existence and is not subject to suit under § 1983. See Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82

(1992) (a department or subdivision of local government is not a “juridical,” or suable, entity under 42 U.S.C. § 1983). See also Owens v. Scott Cty. Jail, 328 F.3d 1026, 1027 (8th Cir. 2003) (“county jails are not legal entities amenable to suit”); De La Garza v. Kandiyohi Cty. Jail, 18 F. App’x 436, 437 (8th Cir. 2001) (affirming district court dismissal of county jail and sheriff’s department as parties because they are not suable entities). Even if the Court were to construe the complaint as brought against the County itself, plaintiff’s allegations do not support a claim of municipal liability. See Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 691 (1978). Plaintiff has not alleged that Cape Girardeau County has an unconstitutional policy or custom that makes it liable for the alleged violations of his constitutional rights. Indeed, there is no mention whatsoever of any policy or

custom in plaintiff’s allegations, and there are no allegations regarding a pattern of similar constitutional violations by other County employees. Plaintiff’s complaint strictly addresses his against the Jail is subject to dismissal.1

B. Official Capacity Claim against defendant Richard Rushin Plaintiff’s official capacity claim against defendant Richard Rushin is also frivolous. 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). See also Brewington v. Keener, 902 F.3d 796, 800 (8th Cir. 2018) (explaining that official capacity suit against sheriff and his deputy “must be treated as a suit against the County”); Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016) (stating that a “plaintiff who sues public employees in their official, rather than

individual, capacities sues only the public employer”); and Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (stating that a “suit against a public official in his official capacity is actually a suit against the entity for which the official is an agent”). Thus, in order to prevail on an official capacity claim, the plaintiff must establish the governmental entity’s liability for the alleged conduct. Kelly, 813 F.3d at 1075. In this case, plaintiff alleges the officer is employed by the Jail as the Jail Administrator which, as noted above, is not an entity that can be sued under § 1983 and no municipal liability has been alleged. See Ketchum, 974 F.2d at 82. C. Individual Capacity Claims against defendants Rushin and Williams As presently alleged, plaintiff’s individual claims against defendant Rushin fail to pass this Court’s initial review. Plaintiff asserts defendant Rushin did not try to “resolve the issue” and did

not “inform the federal supervisor.” To state a claim under § 1983, plaintiff must plead that each

1 When plaintiff files his amended complaint in this matter, he should not include the Cape Girardeau County Sheriff’s Office Jail as a named defendant because it is not suable under § 1983. (8th Cir. 2014) (citing Iqbal, 556 U.S. at 676). See also Madewell v. Roberts, 909 F.2d 1203, 1208

(8th Cir. 1990) (“Liability under § 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of rights.”). Plaintiff has not set forth any facts indicating how defendant Rushin was personally involved in or directly responsible for the violation of his constitutional rights. Instead, plaintiff appears to be alleging responsibility based solely on defendant Rushin’s status as the Jail Administrator. A government official cannot be held liable simply because he held a supervisory or administrative position. See Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (claims sounding in respondeat superior are not cognizable under § 1983). If plaintiff wishes to bring a § 1983 action against defendant Rushin, he must allege sufficient facts explaining how Rushin personally participated in a constitutional violation and/or how he directly failed to train

or supervise the offending employee. See Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001); Moore v. City of Desloge, Mo., 647 F.3d 841, 849 (8th Cir. 2011) (in order to maintain an action for training or supervisory liability, the plaintiff must show that the failure to train or supervise caused the injury). Additionally, plaintiff’s medical claim against defendant Williams in her individual capacity is not sufficiently alleged. Plaintiff states in a conclusory fashion that Williams did not provide him with medical attention. Plaintiff does not provide any supportive facts, such that he requested medical assistance from Williams or that she knew of the extent of his injuries from the alleged tasing. A federal complaint must contain the ‘who, what, when and where’ of what happened, and each defendant must be linked to a particular action.” Drummer v. Corizon Corr.

Health Care, 2016 WL 3971399, at *1 (E.D. Mo. July 25, 2016). The Eighth Amendment requires inmates to be provided with adequate medical care. See Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011). To establish a denial of medical care rises to the level of an Eighth Amendment deliberate indifference consists of two prongs. Id. First, an inmate must show that he “suffered

from an objectively serious medical need.” Id. Second, an inmate must show that the defendant knew of and deliberately disregarded that need. Id. “[D]eliberate indifference requires a highly culpable state of mind approaching actual intent.” Kulkay v. Roy, 847 F.3d 637, 643 (8th Cir. 2017). Thus, if plaintiff wishes to bring a deliberate indifference claim against defendant Williams, he must properly support his complaint with sufficient factual allegations. Amendment Instructions Plaintiff is advised 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, 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 (5th 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 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. 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 the

factual allegations supporting his claim against that defendant; (2) state what constitutional or federal statutory right(s) that defendant violated; and (3) state whether the defendant is being sued in his/her individual capacity or official capacity. 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). 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 deprivation of rights”). 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) (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.”). 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. Motion for Appointment of Counsel

Plaintiff has filed a motion to appoint counsel. ECF No. 3. In civil cases, a self-represented litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013). See also Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (stating that “[a] pro se litigant has no statutory or constitutional right to have counsel appointed in a civil case”). Rather, a district court may appoint counsel in a civil case if the court 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.” Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether to appoint counsel for an indigent litigant, a court considers relevant factors such as the complexity of the case, the ability of the pro se litigant to investigate the facts, the existence of conflicting testimony,

and the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). warranted at this time. Plaintiff has yet to file a complaint that survives initial review, so it cannot

be said that he has presented non-frivolous claims. Additionally, this case appears to involve straightforward factual and legal issues, and there is no indication that plaintiff cannot investigate the facts and present his claims to the Court. The Court will entertain future motions for appointment of counsel as the case progresses, if appropriate. Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [ECF No. 2] is GRANTED. IT IS FURTHER ORDERED that 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 plaintiff’s letter requesting additional time to submit his inmate account statement [ECF No. 5] is DENIED as moot. IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff two blank Prisoner Civil Rights Complaint forms. 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 motion for appointment of counsel [ECF No. 3] is DENIED at this time without prejudice. IT IS FINALLY ORDERED that if plaintiff fails to comply with this Order, the Court will dismiss this action without prejudice and without further notice. Dated this 12™ day of January, 2023.

ff PX ry ff Lf PRD Lf aw I f ft <4 Se F é J. STEPHEN N. LIMBAUGH, JR. SENIOR UNITED STATES DISTRICT JUDGE