Reger v. Wilhite et al

Filing 8

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Kelly David Reger, 5 MOTION to Appoint Counsel filed by Plaintiff Kelly David Reger. IT IS HEREBY ORDERED that plaintiff 9;s motion to proceed in forma pauperis [ECF No. 2] is GRANTED.IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 within twenty-one (21) days of the date of this Order. Plaintiff is instructed to make his remittance pay able 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 of Court shall issue process or cause process to issue upon the complaint, pursuant to the service agreement the Court maintains with the Missouri Attorney General's Office, as to defendants Travis L. Wilhite, Jr., Officer Unknown Corchado, and Of ficer Unknown Ash in their individual capacities. IT IS FURTHER ORDERED that plaintiff's motion to appoint counsel [ECF No. 5] is DENIED without prejudice. (Initial Partial Filing Fee due by 8/28/2018.) Signed by Magistrate Judge Abbie Crites-Leoni on 8/7/18. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
KELLY DAVID REGER,
Plaintiff,
v.
TRAVIS L. WILHITE JR., et al.,
Defendants.

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No. 1:18-CV-98 ACL

MEMORANDUM AND ORDER
Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42
U.S.C. § 1983. Having reviewed plaintiff’s financial information, the Court assesses a partial
initial filing fee of $1.00, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Furthermore, after reviewing the complaint, the Court will order the Clerk to issue
process or cause process to be issued on the complaint.
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, formerly an inmate at Southeast Correctional Center (“SECC”), brings this
§ 1983 action against defendants Travis Wilhite, Jr. (Sergeant, SECC); Unknown Corchado
(Corrections Officer, SECC); and Unknown Ash (Corrections Officer, SECC). Plaintiff states
that on January 29, 2017, his food port in his cell door was open. Although not specifically
addressed in the complaint, plaintiff’s hand was sticking out through the food port. Officer Ash
approached, and asked why plaintiff’s food port was open. Plaintiff asked for Officer Ash to
contact a lieutenant. Officer Ash left and returned with Sergeant Wilhite and Officer Corchado.
Plaintiff asked again to speak to a lieutenant, Sergeant Wilhite’s superior. At this point,
Wilhite began sliding the metal door of the food port closed, causing plaintiff’s hand to be
crushed between the sliding door and the door frame. Wilhite then ordered another officer to
place the hazardous materials box over the food port. Once the food port opening was secured
inside the hazardous materials box, Wilhite again began crushing plaintiff’s hand with the sliding
door. According to plaintiff, Wilhite “alternat[ed] between slamming the door on [plaintiff’s]
hand and using his full bodyweight to lean on the door, deliberately crushing [plaintiff’s] hand
with the sliding metal door, multiple times.” Officers Corchado and Ash watched these events,
and failed to intervene.
For damages, plaintiff seeks $10,000 in compensatory damages and $20,000 in punitive
damages.
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Discussion
“’[T]he unnecessary and wanton infliction of pain . . . constitutes cruel and unusual
punishment forbidden by the Eighth Amendment.’” Hudson v. McMillian, 503 U.S. 1, 9-10
(1992) (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)). In the context of a prisoner’s
Eighth Amendment claim against a prison guard for the use of excessive force, “the core judicial
inquiry is that set out in Whitley: whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.” Id.
There is no “significant injury” requirement, because “[o]therwise, the Eighth
Amendment would permit any physical punishment, no matter how diabolic or inhuman,
inflicting less than some arbitrary quantity of injury.” Id. at 9. Nevertheless, the “Eighth
Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from
constitutional recognition de minimis uses of physical force, provided that the use of force is not
of a sort ‘repugnant to the conscience of mankind.’” Id. at 9-10 (holding that the blows directed
at the plaintiff=s mouth eyes, chest, and stomach, which caused bruises, swelling, loosened teeth,
and a cracked dental plate, were not de minimis for Eighth Amendment purposes).
Here, viewing all facts in the light most favorable to plaintiff, Sgt. Wilhite Jr. repeatedly
slammed the sliding door of plaintiff’s food port, crushing plaintiff’s hand and arm. He then
used the hazardous materials box to secure the food port, and again slammed the sliding door on
the food port using his entire bodyweight to crush plaintiff’s forearm between the door and its
frame. Wilhite also threatened to kick the door shut. Two other officers witnessed this event,
Unknown Ash and Unknown Corchado.
This Court has previously addressed the dangers of open food ports: “Open food ports
are considered an immediate security risk because an inmate holding it open may have a
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dangerous weapon such as a ‘homemade spear with a prison made weapon attached to the end,’
or ‘a container full of feces, urine, or saliva’ to throw at them.” Thomas v. Northern, No. 1:07CV-114 SNLJ, 2009 WL 3617556, *1 (E.D. Mo. Oct. 29, 2009). While the Court recognizes
that there can be a need for a correctional officer to use force to require an inmate to withdraw
his hand from his food port (see id.), based on plaintiff’s facts, on initial review, plaintiff has
stated a plausible claim of excessive force.

Plaintiff’s allegations establish that defendant

Wilhite’s use of force was not applied in a good-faith effort to maintain or restore discipline, but
was applied to cause harm.
Plaintiff’s claims against Officers Corchado and Ash for failure to intervene also survive
initial review under 28 U.S.C. § 1915(e). The Eighth Circuit has held that a corrections officer
has a duty to intervene on behalf of an inmate being assaulted by another corrections officer. See
Buckner v. Hollins, 983 F.2d 119, 121 (8th Cir. 1993). The failure to intervene on behalf of an
inmate can constitute an Eighth Amendment violation. Id. at 122-23. For these reasons, the
Court will order the Clerk of Court to issue process or cause process to issue on the complaint as
to defendants.
Finally, plaintiff has filed a motion for appointment of counsel. The motion will be
denied without prejudice. “A pro se litigant has no statutory or constitutional right to have
counsel appointed in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998).
When determining whether to appoint counsel for an indigent litigant, the 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 claims. Id.

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After reviewing these factors, the Court finds that the appointment of counsel is not
warranted at this time.

Plaintiff has presented non-frivolous allegations in his complaint.

However, he has demonstrated, at this point, that he can adequately present his claims to the
Court. Additionally, neither the factual nor the legal issues in this case are complex. The Court
will entertain future motions for appointment of counsel as the case progresses.
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 must pay an initial filing fee of $1.00 within
twenty-one (21) 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. 1
IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause
process to issue upon the complaint, pursuant to the service agreement the Court maintains with
the Missouri Attorney General’s Office, as to defendants Travis L. Wilhite, Jr., Officer Unknown
Corchado, and Officer Unknown Ash in their individual capacities.

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Prisoners must pay the full amount of the $350 filing fee. 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. The agency having custody of the prisoner
will deduct the payments and forward them to the Court each time the amount in the account
exceeds $10. 28 U.S.C. § 1915(b)(2).
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IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel [ECF No. 5]
is DENIED without prejudice.
Dated this 7th day of August, 2018.

ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE

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