Graham v. Ste. Genevieve County Jail et al

Filing 7

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Jimmy Dale Graham motion is GRANTED( Amended/Supplemental Pleadings due by 9/17/2015., Initial Partial Filing Fee due by 9/17/2015.). Signed by District Judge Stephen N. Limbaugh, Jr on 8/18/15. (MRS)

UNITED 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
This matter is before the Court upon the motion of plaintiff (registration no. 40973-044),
an inmate at Herlong Federal Correctional Institution, for leave to commence this action without
payment of the required filing fee. For the reasons stated below, the Court finds that the plaintiff
does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing
fee of $24.60. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint,
the Court finds that plaintiff shall be required to amend his complaint at this time.
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 or
her 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 sixmonth 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 the prisoner's
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 prisoner's account exceeds
$10, until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account statement
for the six-month period immediately preceding the submission of his complaint. A review of
plaintiff's account indicates an average monthly deposit of $122.95, and an average monthly
balance of $49.39. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $24.60, which is 20 percent of plaintiff's average
monthly deposit.
28 U.S.C. § 1915(e)
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
granted, or seeks monetary relief from a defendant who is immune from such relief. An action is
frivolous if it Alacks 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
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
The Complaint
Plaintiff, an inmate at FCI Herlong in Herlong, California, brings this action pursuant to
42 U.S.C. § 1983 alleging violations of his civil rights. Named as defendants are: Saint
Genevieve County Jail; Patti Karol (Sergeant, Sheriff’s Dept.); Chris Joggerst; Andy Johnson;
(Lieutenant, Sheriff’s Dept.); Unknown Ruessler (Corporal, Sheriff’s Dept.); Unknown Burns

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(Corporal, Sheriff’s Dept.); Unknown Berg (Deputy, Sheriff’s Dept.); Unknown Miller
(Corporal, Sheriff’s Dept.); Gary Stolzer (Sheriff); Unknown Ritchie (Corporal, Sheriff’s
Dept.);Unknown Emms (Correctional Officer); Unknown Constantino (Correctional Officer);
Unknown Conrad (Correctional Officer); Unknown Mertz (Correctional Officer) and George
Pack (U.S. Marshal)1.
Plaintiff states that he was treated badly from the time he was brought to the jail, but it
wasn’t until he entered a guilty plea for a sex offense that his rights were truly violated at the
Jail. After he entered his guilty plea in April of 2014, plaintiff claims he was taken to a
disciplinary pod, even though he did not have any disciplinary charges pending against him at
the Jail. He claims his privileges at the Jail were reduced at that time. Plaintiff claims that the
pod he was transferred to contained inmates who were violent and who openly threatened him
because he had been convicted for a sex offense, and he immediately told the correctional
officers that there was a problem with his safety in this pod. Plaintiff was told by each officer he
questioned that defendant Karol had ordered that he be placed with the disciplinary inmates.
Plaintiff states that he filled out several different requests to be moved for safety reasons,
and that he asked several of the named defendant correctional officers to be moved, but each
time he was told that defendant Karol wanted him placed with the disciplinary inmates. Plaintiff
claims that his defense counsel also asked that he be moved to a safer place at the Jail.
Plaintiff states that he was attacked by another inmate in June of 2014 after some
unnamed defendants purposely placed a known violent inmate in a locked room with plaintiff.
Plaintiff believes that some other unnamed defendants also failed to properly respond to the

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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
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).

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attack even though they could hear the attack occurring through the intercom and see it on the
video surveillance. Plaintiff has not included enough information as to which of the named
defendants he believes are liable for failing to protect him in this instance.
Plaintiff seeks five million dollars in monetary damages for defendants’ purported civil
rights violations.
Discussion
In plaintiff’s complaint, he states that his rights were violated when a whole list of
defendants acted to place him with known violent offenders who had threatened his safety on
numerous occasions within the confines of the Ste. Genevieve County Jail.

Plaintiff is

attempting to assert a failure to protect claim, pursuant to the Eighth Amendment2, against
defendants, but as stated, his complaint fails to state a claim for relief.
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.3
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

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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
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).
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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.”).

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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 fail to
state a claim at this time.
Also, 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. Thus, at this time, plaintiff’s suit would be subject
to dismissal on this basis.
Despite the aforementioned, and because of the serious nature of the allegations in the
complaint, the Court will not dismiss the case at this time. Instead, the Court will give plaintiff
the opportunity to file an amended complaint.
In filing his amended complaint, plaintiff should be aware that Federal Rules of Civil
Procedure 8 and 10 are the guidelines for drafting a civil complaint. Rule 8(a) requires that a

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complaint contain a short and plain statement of the claim showing that the pleader is entitled to
relief and a demand for the relief sought. And Rule 10 requires that a party must state its claims
or defenses in separately numbered paragraphs, each limited as far as practicable to a single set
of circumstances. Plaintiff must clearly state the defendants which he is pursuing allegations
against, and he must articulate, for each of those defendants, the factual circumstances
surrounding their alleged wrongful conduct.
Plaintiff shall have thirty (30) days from the date of this Order to file an amended
complaint on a court-provided form and to attempt to correct the deficiencies in his complaint.
Plaintiff is warned that the filing of an amended complaint replaces the original complaint, and
claims that are not re-alleged are deemed abandoned. E.g., In re Wireless Telephone Federal
Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). If plaintiff fails to file an
amended complaint on a court-provided form within thirty (30) days, the Court will dismiss this
action without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc.
#2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $24.60
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 shall submit an amended complaint on a
court-provided form no later than thirty (30) days from the date of this Memorandum and Order.

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IT IS FURTHER ORDERED that upon submission of the amended complaint, the
Court shall again review this action pursuant to 28 U.S.C. § 1915.
IT IS FURTHER ORDERED that the Court shall mail to plaintiff a copy of the Court’s
Prisoner Civil Rights Complaint form.
Dated this 18th day of August, 2015.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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