Anderson v. Carro et al

Filing 8

OPINION, MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis is GRANTED. [ECF No. 2] IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $9.11 within thirty (30) days of th e 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 remittanc e is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint against defendants Corporal Carrow, Unknown Hattenhauer, and S. Edwards. IT IS FURTHER ORDERED plaintiff's mot ion to amend/correct party names is GRANTED. [ECF No. 7] IT IS FURTHER ORDERED that the Clerk of Court shall amend the docket sheet to change defendant "Unknown Carro" to "Corporal Carrow" and change the short caption in this case to "Anderson v. Carrow, et al."Dated this 15th day of June, 2018. Signed by District Judge Henry Edward Autrey on 6/15/2018. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
MARK BRUCE ANDERSON,
Plaintiff,
v.
CORPORAL CARROW, et al.,
Defendants.

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No. 1:18CV48 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Mark Bruce Anderson, an
inmate at Ste. Genevieve County Jail, for leave to commence this action without payment of the
required filing fee. For the reasons stated below, the Court finds that plaintiff does not have
sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $9.11.
See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will order the
Clerk to issue process or cause process to be issued on the 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 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 $45.54. Plaintiff has insufficient
funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$9.11, which is 20 percent of plaintiff’s average monthly deposit.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e), 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 can be granted.
To state a claim for relief, a complaint must plead more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “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.” Id. at 678. Determining whether a complaint states a plausible claim for relief is a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983 alleging violations of his rights under
the Fifth, Eighth, and Fourteenth Amendments.

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Named as defendants are the following

employees of the Ste. Genevieve County Sheriff’s Office:

Corporal Carrow, 1 Officer

Hattenhauer, and Officer S. Edwards.
Plaintiff, a federal pretrial detainee, states that between October 9, 2017 and December
20, 2017, he was housed in Ste. Genevieve County Jail’s A-pod, which is typically designated
for sex offenders, inmates with medical issues, and other inmates needing protective custody. 2
Prior to October 9, 2017, these inmates had been housed in G-pod, which had individual cells to
afford them more protection. G-pod also had two intercom locations, and an intercom located in
each cell.
On October 9, 2017, all inmates from the G-pod were moved to the A-pod. A-pod is an
“open-bay” style pod with no cells and only one button, located by the main door, for the
intercom system. Plaintiff states that jail staff would also place non-sex offenders in A-pod if the
jail became overcrowded.
Beginning in October 2017 and continuing through November 2017, federal inmate J.C.
Waller notified defendants Hattenhauer and S. Edwards verbally that plaintiff and two other
inmates were being threatened and targeted for serious bodily injury by non-sex offenders
housed in A-pod. Waller told defendants that they were placing sex offenders in life threatening
danger and disregarding these inmate’s health and safety. Defendants Hattenhauer and Edwards
responded that they were aware of the dangerous situation, but that Ste. Genevieve County Jail
was overcrowded. So aggressive, non-sex offenders were being housed with sex offenders. In
response to Waller notifying defendants of continued threats to plaintiff in November 2017,

Plaintiff names Corporal “Carro” in the caption of his complaint, however, he has filed a
motion to amend and correct defendant’s name to Corporal Carrow. See ECF No. 7. The Court
will grant plaintiff’s motion, and order the Clerk of Court to correct Corporal Carrow’s name in
the record.
2
On August 30, 2017, plaintiff was indicted on one count of receipt of child pornography in
United States v. Anderson, No. 4:17-CR-388 SNLJ (E.D. Mo. Aug. 30, 2017). He is awaiting
sentencing in that criminal case, which is scheduled for July 19, 2018. Id. at ECF No. 48.
1

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defendants responded that “nobody has been killed.” Plaintiff states defendants continued to
ignore these explicit warnings from inmate Waller.
On December 20, 2017, plaintiff was assaulted by two other inmates in A-pod, William
Warden and Matthew Gregory.

These violent non-sex offender inmates punched and kicked

plaintiff repeatedly in the face and head, causing bruising, swelling, and cuts all over his body.
During the attack, the inmates blocked plaintiff’s access to the main door and the emergency
intercom system in the A-pod. Plaintiff was taken to Ste. Genevieve Hospital for treatment, and
was also referred to mental health services. Plaintiff alleges defendants violated the Eighth
Amendment rights by failing to protect him from this assault.

For relief, plaintiff seeks

declaratory and injunctive relief and $150,000.00 in damages.
Discussion
To state a failure-to-protect claim under the Eighth Amendment, a plaintiff is required to
allege that defendants were aware of facts from which they could infer the existence of a
substantial risk of serious harm to him, they actually drew the inference, and 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 constitutes “serious harm.” Jensen v. Clarke, 94 F.3d 1191, 1198
(8th Cir. 1996). A single incident of violence may, in some circumstances, support a failure-toprotect claim. See Young v. Selk, 508 F.3d 868, 870-73 (8th Cir. 2007) (discussing potential for
substantial risk where inmate told officials of cellmate’s threats, requested to be removed from
cell immediately, said it was an emergency, and was subsequently attacked).

Liberally

construing plaintiff’s complaint, the Court finds plaintiff has stated a non-frivoulous claim of
violations of his Eighth Amendment rights against defendants. The Court will order process to
issue on this claim.

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Plaintiff’s claims of violations of his Fifth and Fourteenth Amendment rights, however,
are too conclusory to state a claim. Plaintiff states only that “defendants’ conduct further
deprives plaintiff of Due Process and Equal Protection Clause, of their own force.” While civil
rights pleadings are construed liberally on initial review, “at the very least the complaint must
contain facts which state a claim as a matter of law and must not be conclusory.” Frey v. City of
Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995). The Court will dismiss plaintiff’s Fifth and
Fourteenth Amendment claims as frivolous because the complaint contains only conclusory
allegations and fails to allege any facts, which if proved, would afford a basis for the granting of
relief as to these claims.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis is
GRANTED. [ECF No. 2]
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $9.11
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 the Clerk shall issue process or cause process to
issue upon the complaint against defendants Corporal Carrow, Unknown Hattenhauer, and S.
Edwards.
IT IS FURTHER ORDERED plaintiff’s motion to amend/correct party names is
GRANTED. [ECF No. 7]

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IT IS FURTHER ORDERED that the Clerk of Court shall amend the docket sheet to
change defendant “Unknown Carro” to “Corporal Carrow” and change the short caption in this
case to “Anderson v. Carrow, et al.”
Dated this 15th day of June, 2018.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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