Smith v. Green et al

Filing 10

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Clerk of Court shall issue process or cause process to issue upon the second amended complaint as to defendants Dunklin County, Bob Holder, Nicole Green, Ashley Grisham, and Jimmy Smith. Defendant s shall be served by issuance of summons and service by the U.S. Marshal's Office at 1175 Floyd Street, Kennett, MO 63857. IT IS FURTHER ORDERED that defendants Melissa Unknown, Marisha Unknown, Steve Unknown, Unknown Pierce, B. Tinsley, Brandon Perkins, Mallory Snow, Joe Nelson,Ruby Lopez, Kyle Simms, and Daniel Hobbs are DISMISSED from this action. A separate order of partial dismissal will be entered herewith. IT IS HEREBY CERTIFIED that an appeal from this partial dismissal would not be taken in good faith. Signed by District Judge Ronnie L. White on 5/1/18. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

CHRISTOPHER GERALD SMITH,
Plaintiff,
V.

NICOLE GREEN, et al.,
Defendants.

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No. 1:17-cv-154-NAB

MEMORANDUM AND ORDER

This matter is before the Court upon review of the second amended complaint filed by
plaintiff Christopher Gerald Smith, proceeding herein pro se and in forma pauperis.

For the

reasons explained below, the Clerk of Court will be directed to serve process upon the second
amended complaint as to Dunklin County, Bob Holder, Nicole Green, Ashley Grisham, and
Jimmy Smith, and defendants Melissa Unknown, Marisha Unknown, Steve Unknown, Unknown
Pierce, B. Tinsley, Brandon Perkins, Mallory Snow, Joe Nelson, Ruby Lopez, Kyle Simms, and
Daniel Hobbs will be dismissed.
Background

Plaintiff, a pretrial detainee at the Dunklin County Justice Center (also 'jail"), initiated
this case on September 1, 21017 by filing a complaint against the Dunklin County Justice Center,
Ashley Green, Nicole Green, Bob Holder, Unknown Pewitt, and Jimmy Smith. He sought and
was granted leave to proceed informa pauperis, and the Court reviewed his complaint pursuant
to 28 U.S.C. § 1915(e). Upon initial review, the Court noted that the complaint was subject to
dismissal because plaintiff failed to allege facts tending to show how any of the named
defendants were personally responsible for violating his rights. In consideration of plaintiffs

pro se status, the Court permitted plaintiff the opportunity to file an amended complaint. In so

doing, the Court explained why the complaint was subject to dismissal, clearly explained the
necessity of alleging facts showing how each named defendant was responsible for the alleged
harm, and expressly stated that the failure to make specific factual allegations against a
defendant would result in the dismissal of that defendant. In response, plaintiff filed an amended
complaint, and then filed a second amended complaint, which this Court now reviews pursuant
to 28 U.S.C. § 1915(e).
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2)(B), the Court is required to dismiss a complaint filed in
forma pauperis if it 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 ifit "lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319,
328 (1989). 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). An action fails to state
a claim upon which relief can 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).
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, 556 U.S. 662, 679
(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 678. Second, the Court
must determine whether the complaint states a plausible claim for relief. Id at 679. This is a

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"context-specific task that requires the reviewing court to draw on its judicial experience and
common sense." Id.
The plaintiff is required to plead facts that show more than the "mere possibility of
misconduct." Iqbal, 556 U.S. at 679. The Court must review the factual allegations in the
complaint "to determine if they plausibly suggest an entitlement to relief." Id. at 681. When
faced with alternative explanations for the alleged misconduct, the Court may exercise its
judgment in determining whether plaintiffs proffered conclusion is the most plausible or
whether it is more likely that no misconduct occurred. Id. at 680-82.
Pro se complaints are to be liberally construed, Estelle v. Gamble, 429 U.S. 97, 106

(1976), but they still 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).

The Court must weigh all factual

allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v.
Hernandez, 504 U.S. 25, 32 (1992). Federal courts are not required to "assume facts that are not

alleged, just because an additional factual allegation would have formed a stronger complaint."
Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004).
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D ISCUSSIOD

Plaintiff has filed the second amended complaint against Nicole Green (Jail
Administrator), Bob Holder (Sheriff), Jimmy Smith (Lead Supervisor), Ashley Grisham
(Nurse), 2 and Duriklin County, and corrections officers B. Tinsley, Joe Nelson, Ruby Lopez,

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The instant case is one of four civil rights cases plaintiff has filed in this Court since July 24, 2017 to challenge
conditions of his present confinement. See Smith v. Holder, et al., Case No. 1:17-cv-117-RWS (E.D. Mo. Jul. 24,
2017); Smith v. Smith, et al., Case No. 1: l 7-cv-145-NCC (E.D. Mo. Aug. 28, 2017); Smith v. Green, et al., Case No.
1:17-cv-144-JMB (E.D. Mo. Aug. 28, 2017). As ofthe date ofthis Memorandum and Order, Smith v. Holder, et al.
remains pending. In that case, plaintiff alleges, inter alia, that his diabetes is not being properly treated and he is
suffering from dizziness, loss of consciousness, and frequent urination. He also alleges that, in retaliation for filing
grievances, Green, and Grisham moved him to a different cell.
2

In plaintiffs original complaint, Ashley Grisham was identified as "Ashley Green."

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Kyle Simms, Brandon Perkins, Mallory Snow, Daniel Hobbs, Marisha Unknown, Melissa
Unknown, Steve Unknown, and Unknown Pierce.

He states he sues the defendants in an

individual and official capacity.
According to the second amended complaint, plaintiff suffers from uncontrolled diabetes,
and as a result, is prone to break out in cold sweats and lose consciousness. Upon arrival at the
jail, he was housed in "H pod," which had a handicap-accessible shower stall. However, Holder
and Green ordered the maintenance technician to tum off its water supply, and Holder, Green,
and Smith refused to tum the water back on. This left plaintiff with no choice but to use the nonaccessible shower stall. On several occasions, while showering, plaintiff became dizzy, fell, and
hit his head.
Plaintiff filed grievances about this and other matters. In retaliation, Green and Grisham
ordered plaintiff repeatedly moved throughout the jail, including to an isolation cell where he
was kept locked down.

Smith, Green and Holder also placed plaintiff in administrative

segregation without notice, an opportunity to be heard, or periodic reviews. Dunklin County had
policies that led to plaintiffs injuries.
Liberally construed, the second amended complaint states a viable claim under the ADA
and the RA 3 against Dunklin County, and against Holder, Green, and Smith in their official
capacities.

The second amended complaint also contains sufficient allegations to demonstrate

unconstitutional retaliation against Green and Grisham, that Green, Smith and Holder placed him
in administrative segregation without due process, and to demonstrate that the county had a

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Establishment of a prima facie case under the RA requires an additional showing that the program in question
received federal financial assistance. Gorman v. Bartch, 152 F.3d 907, 911 (8th Cir. 1995), Randolph v. Rogers,
170 F.3d 850, 858 (8th Cir. 1999). The second amended complaint contains no such allegations. However, in
consideration of plaintiffs pro se status, the Court will allow the claim to proceed at this time, and give the
defendants the opportunity to address the issue of whether the program in question received federal financial
assistance.

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policy leading to plaintiffs injuries. These claims will be allowed to proceed against these
defendants in their official and individual capacities.
Plaintiff also lists the names of defendants Melissa, Marisha, Steve, Pierce, Tinsley,
Perkins, Snow, Nelson, Lopez, Smith, Simms, and Hobbs, and states that they all violated his
First Amendment right to be free from retaliation.

In support, plaintiff alleges that "they"

retaliated against him in "various ways." (Docket No. 8 at 7). Plaintiff then lists various forms
of conduct, including slamming his door harder than other doors, bringing cold food trays,
delaying his mail, calling him names, threatening the use of a taser or pepper spray, telling him
to stop complaining, and telling him to stop whining. Plaintiff does not specify which defendant
engaged in what conduct. Plaintiff also contends that Holder, Green, Simms, Snow, Perkins,
Pierce, Melissa, Marisha, Lopez, Nelson, Smith, Hobbs and Tinsley violated his right to outdoor
recreation by not letting him go outdoors even though other inmates were allowed to get fresh

au.
To state an actionable civil rights claim, a plaintiff must plead specific facts showing
what each named defendant allegedly did, or failed to do, to violate his federally-protected
rights. See 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."). Here,
plaintiff has failed to allege facts showing how each defendant was personally involved in
violating his rights, despite the fact that the Court previously explained the necessity of doing so.
He also fails to allege facts showing the severity or frequency of the alleged retaliatory conduct,
such that it is plausible that such conduct was severe or frequent enough to chill a person of
ordinary firmness from engaging in constitutionally-protected activity. Moreover, by merely
lumping these defendants together into a mass without providing a factual basis to distinguish

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their conduct, plaintiff has failed to give the defendants fair notice of the grounds for the claims
made against them. This practice results in a pleading that fails to comply with Rule 8(a) of the
Federal Rules of Civil Procedure. See Aragon v. Che Ku, 277 F.Supp.3d 1055, 1060-61 (D.
Minn. 2017) (citing Tatone v. SunTrust Mortg., Inc., 857 F.Supp.2d 821, 831 (D. Minn. 2012)).
Finally, plaintiff sets forth no non-conclusory allegations that he was denied adequate exercise,
For all of these reasons, defendants Melissa,

just that he was not allowed to go outdoors.

Marisha, Steve, Pierce, Tinsley, Perkins, Snow, Nelson, Lopez, Simms, and Hobbs will be
dismissed from this action, and these particular claims are dismissed as to defendants Holder,
Green, and Smith.
Plaintiff also states he "brings an equal protection claim" against Holder and Green for
allowing some inmates to go outdoors but not him. (Docket No. 8 at 8). He also states that he
"brings a civil conspiracy claim" against Green, Grisham, Holder, Smith, Nelson, Snow, Pierce,
Perkins, Melissa, Steve, Marisha, Tinsley, Lopez, Simms and Hobbs for "conspiring together" to
deprive him of his right to be free from retaliation, to deprive him of outdoor recreation, and to
deprive him of his right to be accommodated pursuant to the ADA and the RA. Id In support,
he states there was a "meeting of the minds" between the defendants to agree to violate his
rights. Id.
Having liberally construed these allegations, the Court finds they offer only the "labels
and conclusions" and "formulaic recitation of the elements of a cause of action" that the
Supreme Court has found deficient. See Twombly, 550 U.S. at 555. Even pro se complaints are
required to allege facts which, if true, state a claim for relief as a matter of law. Martin, 623 F .2d
at 1286, see also Davis v. Hall, 992 F.3d 151, 152 (8th Cir. 1993) (conclusory statements are
insufficient to state a § 1983 claim). Because plaintiff has tendered only the barest assertion of

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wrongdoing without the factual enhancement required to push the claim across the line between
possibility and plausibility of entitlement to relief, he fails to state an equal protection claim or a
claim of civil conspiracy. See Iqbal, 550 U.S. at 557.
Accordingly,
IT IS HEREBY ORDERED that the Clerk of Court shall issue process or cause process
to issue upon the second amended complaint as to defendants Dunklin County, Bob Holder,
Nicole Green, Ashley Grisham, and Jimmy Smith. Defendants shall be served by issuance of
summons and service by the U.S. Marshal's Office at 1175 Floyd Street, Kennett, MO 63857.

IT IS FURTHER ORDERED that defendants Melissa Unknown, Marisha Unknown,
Steve Unknown, Unknown Pierce, B. Tinsley, Brandon Perkins, Mallory Snow, Joe Nelson,
Ruby Lopez, Kyle Simms, and Daniel Hobbs are DISMISSED from this action. A separate
order of partial dismissal will be entered herewith.

IT IS HEREBY CERTIFIED that an appeal from this partial dismissal would not be
taken in good faith.
Dated this

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E_ day of May, 2018.
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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