Graham v. Ste. Genevieve County Jail et al

Filing 16

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Clerk shall not issue process or cause process to issue upon the amended complaint because the amended complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that to the extent plaintiff alleges any state law claims, those claims are subject to dismissal pursuant to 28 U.S.C. § 1367(c). IT IS FURTHER ORDERED that plaintiff's motion to compel [Doc. #13] is DENIED AS MOOT.A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Stephen N. Limbaugh, Jr on 6/13/16. (CSG)

NITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JIMMY DALE GRAHAM,
Plaintiff,
v.
STE. GENEVIEVE COUNTY JAIL, et al.,
Defendants,

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No. 1:15CV111 SNLJ

MEMORANDUM AND ORDER
Before the Court is plaintiff’s amended complaint. For the reasons stated below, the
Court will dismiss this action. See 28 U.S.C. § 1915(e)(2)(B). To the extent plaintiff has any
additional state law claims, those claims will be dismissed pursuant to 28 U.S.C. § 1367(c).
Background
Plaintiff, an inmate at FCI Petersburg in Petersburg, Virginia, brings this action pursuant
to 42 U.S.C. § 1983 alleging violations of his civil rights when he was incarcerated at the Saint
Genevieve County Jail. Plaintiff filed his original complaint in this Court on June 11, 2015,
against sixteen (16) defendants, asserting generally that his rights were violated when defendants
acted unlawfully by placing him with a violent offender at Ste. Genevieve County Jail.
On August 18, 2015, the Court granted plaintiff’s motion to proceed in forma pauperis
and reviewed his original complaint in this action. At that time, plaintiff’s complaint failed to
state a claim upon which relief could be granted for a variety of reasons, not the least of which
was because plaintiff failed to allege the proper capacity under which he was suing the multitude
of defendants in this action. See Docket No. 7, Memorandum and Order, Dated August 18, 2015.

Moreover, plaintiff’s broad and conclusory claims against defendants failed to state a claim for
relief under the pleading standards set forth in Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950-51 (2009).
Despite the fact that plaintiff’s complaint failed to state a claim for relief, the Court
allowed plaintiff a chance to amend his complaint. At that time, plaintiff was given guidance on
the ways in which his complaint was deficient, and he was told how to remedy the deficiencies in
order to amend properly pursuant to Federal Rules of Civil Procedure 8 and 10.
As plaintiff is a prisoner and he is proceeding in forma pauperis, the Court must review
plaintiff’s amended complaint pursuant to 28 U.S.C. § 1915, for frivolousness, maliciousness
and for failure to state a claim upon which relief may be granted.
The Amended Complaint
In his amended complaint, plaintiff once again asserts that his civil rights were violated,
pursuant to 42 U.S.C. § 1983, when he was incarcerated at Saint Genevieve County Jail.
Named as the fifteen (15) defendants in plaintiff’s amended complaint are:

Saint

Genevieve County Jail; Patti Karol (Asst. Jail Administrator); Chris Joggerst (Asst. Jail
Administrator); Andy Johnson; (Jail Administrator); Unknown FNU Ritchie (Corporal, Ste. Gen.
County Jail); Unknown FNU EMMS (Correctional Officer, Ste. Gen. County Jail); FNJ Hulsey
(Corporal, Ste. Gen. County Jail); FNU Constantin (Correctional Officer, Ste. Gen. County Jail);
FNU Unknown Mertz (Correctional Officer, Ste. Gen. County Jail); FNU Unknown Conrad
(Corporal, Ste. Gen. County Jail); Unknown Ruessler (Corporal, Ste. Gen. County Jail);
Unknown Burns (Corporal, Ste. Gen. County Jail); Unknown Bert (Deputy, Sheriff’s Dept.);
Gary Stolzer (Sheriff, Ste. Gen. County); and George Pack (U.S. Marshal)1.

1

As defendant Pack is an employee of the United States Government, plaintiff’s claims against
him for civil rights violations are more properly brought under Bivens v. Six Unknown Named
2

Plaintiff states that he was placed at the Saint Genevieve County Jail on or about June 3,
2014, as a federal detainee awaiting sentencing for a federal charge. Plaintiff states that at the
time he was admitted to the Jail he was being held in the Jail’s general population.
Plaintiff claims in a conclusory manner that “immediately after entering a plea on his
federal case,” he was moved from general population to a segregated housing unit “at the
direction of Asst. Jail Administrator Patti Karol.2
Plaintiff asserts in a general manner that he believes he was “monitored by jail staff via
closed circuit television cameras” twenty-four hours per day in the segregated housing unit.
Plaintiff claims that this is so, even though he states that he was not placed in a cell in that unit,
but instead, placed in a bunk in the dayroom.3
Plaintiff claims generally that on the day he was attacked by another inmate, the inmate
was escorted into the dayroom in the segregated housing unit. Plaintiff states that the inmate,
Demetrius Wheeler, immediately recognized plaintiff and went to the two-way intercom system
and activated it. Plaintiff does not state where Wheeler’s escorts went after they placed him in
the dayroom with plaintiff.

Agents, 403 U.S. 388 (1971). A claim under Bivens involves the same analysis as one arising
under 42 U.S.C. ' 1983. Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999).
2

The Court takes judicial notice that plaintiff was sentenced on September 10, 2014 to sixty (60)
months’ imprisonment, and five (5) years’ supervised release, after pleading guilty to the charge
of Use of Interstate Facilities to Transport Information About a Minor with Intent to Engage in
Sexual Activity. See U.S. v. Graham, No. 4:13CR431 SNLJ (E.D.Mo.2013).
3

In Count I of plaintiff’s amended complaint, he asserts that defendant Karol acted with
negligence and with deliberate indifference by placing him “in a position where she believed
physical harm would be inflicted because of her prejudice against plaintiff due to his criminal
charges.” Similarly, in Count VI, plaintiff asserts that defendant Chris Joggerst, the Asst. Jail
Administrator, acted with negligence and deliberate indifference, when he “knowingly placed
plaintiff in a position where he reasonably should have known was unsafe for plaintiff and a risk
of physical harm was likely.” Plaintiff has not made any factual allegations against defendant
Joggerst in the body of his amended complaint.
3

Plaintiff asserts that Wheeler then began to verbally threaten his life, which was overhead
on the intercom by the officer who responded to Wheeler’s taunts. According to plaintiff,
Wheeler told the officer through the intercom that if he was not removed from the room he
would physically attack plaintiff. Plaintiff claims the officer on the intercom told Wheeler to get
down off the table and shut up. However, accordingly to plaintiff, Wheeler failed to obey and
instead, pulled plaintiff down and started “sexually and physically” assaulting him. Plaintiff
claims that after approximately three minutes, correctional officer defendants Ruessler, Burns
and Berg burst into the area and wrestled Wheeler away from plaintiff. 4 Plaintiff asserts that he
asked for medical treatment, but he was denied care. Plaintiff does not state what, if any, his
physical injuries were.
Plaintiff states generally in his amended complaint that “the entire prison staff” should
have known that his safety was being threatened.5 Plaintiff states that he believes that most of
the inmates at the Jail had harassed or threatened him at one time or another, and he believes that
he was housed in segregation for his own protection. Plaintiff also states in a conclusory manner
that inmate Wheeler was purposely placed in with plaintiff to “effect [sic] physical harm to

4

In Count II-IV of plaintiff’s amended complaint, he asserts that defendant Burns, Ruessler, and
Berg acted with negligence and with deliberate indifference by “not immediately responding to
the threats made against plaintiff by inmate Wheeler.” Plaintiff does not comment on whether he
believes the three minutes it took these defendants to respond qualifies as “immediately.”
5

In Count VII, plaintiff states generally, that the following defendants acted with negligence and
deliberate indifference: FNU Ritchie; FNU EMMS, FNU Hulsey; FNU Constantin; FNU
Conrad; FNU Mertz. Plaintiff states in a conclusory manner that these defendants were
employees at the Ste. Genevieve County Jail during plaintiff’s detention and they “failed to
carry-out their duty to protect plaintiff by displaying their deliberate indifference toward
plaintiff’s safety when made aware of physical threats against plaintiff and failed to place him in
a safe environment.” Plaintiff has not made any specific allegations against any of these
defendants in the body of his amended complaint.
4

plaintiff due to the bias and prejudice of jail officials against plaintiff because of his criminal
charges.”
In Counts V and VIII, plaintiff has made two “failure to train” arguments against two
separate defendants, although he has not made any allegations against these defendants in the
body of his amended complaint.
For example, in Count V, plaintiff asserts that defendant Andy Johnson, the Jail
Administrator, acted with negligence and with deliberate indifference when he failed “to
properly train and supervise his staff, therefore endangering the safety and security of the
prisoners for which he was responsible.” Likewise, in Count VIII, plaintiff states generally that
defendant Stolzer, the Sheriff, acted with negligence and deliberate indifference because he was
required to ensure that the Jail was in compliance with State laws. Moreover, plaintiff believes
that defendant Stolzer failed to properly train and supervise all staff at the Jail.
Last, in Count IX, plaintiff states that George Pack acted with negligence and deliberate
indifference because he was allegedly the “U.S. Marshal Service Supervisor of Jail Operations”
during plaintiff’s detention period. Plaintiff claims that he displayed deliberate indifference
because “when presented with information from plaintiff’s defense attorney that he was being
threatened, he failed to take corrective action and left all decisions regarding plaintiff’s safety up
to Jail officials.” This is the sum total of allegations plaintiff has made against defendant Pack.
Plaintiff seeks five million dollars in monetary damages for defendants’ purported civil
rights violations.
Legal Standard
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed in forma
pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be

5

granted, or seeks monetary relief from a defendant who is immune from such relief. An action is
frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319,
328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose of
vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987),
aff’d 826 F.2d 1059 (4th Cir. 1987). A complaint fails to state a claim 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).
To determine whether an action fails to state a claim upon which relief can be granted,
the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the
complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950-51 (2009). These include “legal conclusions” and “[t]hreadbare recitals of the elements of
a cause of action [that are] supported by mere conclusory statements.” Id. at 1949. Second, the
Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 1950. The plaintiff is required to plead facts that show
more than the “mere possibility of misconduct.”

Id.

The Court must review the factual

allegations in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id.
at 1951. When faced with alternative explanations for the alleged misconduct, the Court may
exercise its judgment in determining whether plaintiff’s proffered conclusion is the most
plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.

6

Discussion
First, plaintiff’s allegations are brought against a plethora of defendants, stated in a
conclusory and broad manner, and fail to articulate exactly what each defendant allegedly did to
violate his civil rights. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). There are times his
complaint contains mere legal conclusions, rather than specific, factual assertions regarding each
defendant. Id. In such cases, plaintiff’s allegations fail to state a claim for relief. 6

Thus,

plaintiff’s claims against defendants Unknown FNU Ritchie, Unknown FNU EMMS, FNJ
Hulsey, FNU Unknown Mertz, FNU Unknown Conrad and FNU Constantin are subject to
dismissal on this basis alone, as plaintiff has failed to make any specific allegations against these
defendants. See Iqbal, 129 S.Ct. at 1949-1951.
Second, plaintiff has not stated a causal connection between each defendant and the
alleged harm. ALiability under § 1983 requires a causal link to, and direct responsibility for, the
alleged deprivation of rights.@ Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); see
also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable under § 1983
where plaintiff fails to allege defendant was personally involved in or directly responsible for
incidents that injured plaintiff); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat
superior theory inapplicable in § 1983 suits). As plaintiff has not stated a personal connection
between each of the named defendants and his allegations in this lawsuit, his allegations against
defendants Unknown FNU Ritchie, Unknown FNU EMMS, FNJ Hulsey, FNU Unknown Mertz,
FNU Unknown Conrad and FNU Constantin.

6

Moreover, plaintiff cannot bring a claim against the Jail, as it is not a suable entity. See
Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (departments or
subdivisions of local government are “not juridical entities suable as such.”).
7

Additionally, defendant has failed to state that defendants Chris Joggerst, Andy Johnson,
Gary Stolzer and George Pack were personally involved in any alleged incidents that caused
harm to plaintiff. Although plaintiff may believe that he has stated a personal connection
between his failure to train allegations and Johnson and Stolzer, he has not done so.
Under a failure to train theory, a defendant may be liable for deficient policies for
training and supervising another defendant if (1) he had notice of the inadequacies, (2) his failure
to train in a relevant respect evidences a deliberate indifference to the rights of others, and (3) the
alleged deficiency in training procedures actually caused plaintiff's injuries. See City of Canton v.
Harris, 489 U.S. 378, 390 (1989); Larson by Larson v. Miller, 76 F.3d 1446, 1454 (8th
Cir.1996).
A defendant may have notice that his training practices are inadequate by two means: (1)
where the failure to train Ais so likely to result in a violation of constitutional rights that the need
for training is patently obvious,@ Larkin v. St. Louis Hous. Auth. Dev. Corp., 355 F.3d 1114,
1117 (8th Cir.2004), and (2) where a pattern of misconduct indicates that the defendant's
responses to a regularly recurring situation are insufficient to protect constitutional rights. City of
Canton, 489 U.S. at 390 (1989).
Plaintiff has not alleged enough in this case to show that either defendant Johnson or
Stolzer failed to train any of the correctional officers under their purview, such that any of the
aforementioned failure to train theories applies. Moreover, plaintiff cannot hold Pack and
Joggerst responsible as supervisory defendants, as supervisors like Joggerst and Pack cannot be
held vicariously liable under § 1983 for the actions of a subordinate. See Iqbal, 129 S. Ct. at
1948.

8

To state such a claim, the plaintiff must plead that the supervising official, through his
own individual actions, has violated the Constitution. Id. Where, as here, the alleged
constitutional violation requires proof of an impermissible motive, the amended complaint must
allege adequately that the defendant acted with such impermissible purpose, not merely that he
knew of a subordinate=s motive. Id.

Plaintiff’s amended complaint does not allege such an

impermissible purpose on behalf of defendants Joggerst and Pack.
Last, as the Court pointed out relating to plaintiff’s original complaint in its August 18,
2015 Memorandum and Order, the complaint is silent as to whether defendants are being sued in
their official or individual capacities. Where a Acomplaint is silent about the capacity in which
[plaintiff] is suing defendant, [a district court must] interpret the complaint as including only
official-capacity claims.@ Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir.
1995); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989).
Naming a government official in his or her official capacity is the equivalent of naming
the government entity that employs the official. Will v. Michigan Dep’t of State Police, 491 U.S.
58, 71 (1989). To state a claim against a municipality or a government official in his or her
official capacity, plaintiff must allege that a policy or custom of the government entity is
responsible for the alleged constitutional violation. Monell v. Dep’t of Social Services, 436 U.S.
658, 690-91 (1978). The instant complaint does not contain any allegations that a policy or
custom of a government entity was responsible for the alleged violations of plaintiff’s
constitutional rights.

As a result, all of the claims brought pursuant to § 1983, including

plaintiff’s failure to protect claims against defendants, are subject to dismissal.7

7

To state a failure-to-protect claim, plaintiff is required to allege that (1) defendants were aware
of facts from which they could infer the existence of a substantial risk of serious harm to him, (2)
they actually drew the inference, and (3) they failed to take reasonable steps to protect him. See
9

Last, the Court will decline to exercise supplemental jurisdiction over plaintiff’s state law
claims, to the extent he is bringing such claims against the defendants in this lawsuit. See 28
U.S.C. § 1367(c).
Accordingly,
IT IS HEREBY ORDERED that the Clerk shall not issue process or cause process to
issue upon the amended complaint because the amended complaint is legally frivolous or fails to
state a claim upon which relief can be granted, or both. See 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that to the extent plaintiff alleges any state law claims,
those claims are subject to dismissal pursuant to 28 U.S.C. § 1367(c).
IT IS FURTHER ORDERED that plaintiff’s motion to compel [Doc. #13] is DENIED
AS MOOT.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 13th day of June, 2016.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

Farmer v. Brennan, 511 U.S. 825, 836-38, 844 (1994). Assault by a fellow inmate can constitute
Aserious harm.@ Jensen v. Clarke, 94 F.3d 1191, 1198 (8th Cir. 1996). However, in this case,
plaintiff has not alleged that defendants were made aware that the inmate at issue in this case
presented a risk of serious harm to plaintiff. Moreover, plaintiff was in a protective custody unit
at the time he was allegedly assaulted by the inmate, and plaintiff admits that three officers came
to the protective custody unit within minutes to stop the alleged assault.
10