Kinsey v. Southeast Correctional Center

Filing 14

MEMORANDUM AND ORDER: IT IS FURTHER ORDERED that plaintiff's third motion for appointment of counsel [ECF No. 12] is DENIED without prejudice. IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff two blank Prisoner Civil Rights Complaint forms. Plaintiff may request additional forms as needed. IT IS FURTHER ORDERED that plaintiff shall file a third amended complaint on the Court-provided form within thirty (30) days after the date of this Order, that is not later than Octob er 19, 2022. Plaintiff is advised that her filing will take the place of her original and amended filings and will be the only pleading that this Court will review. IT IS FINALLY ORDERED that if plaintiff fails to comply with this Order, the Court will dismiss this action without prejudice and without further notice. ( Amended/Supplemental Pleadings due by 10/19/2022.) Signed by Magistrate Judge Abbie Crites-Leoni on 9/19/2022. (JMC)

Case: 1:22-cv-00065-ACL Doc. #: 14 Filed: 09/19/22 Page: 1 of 12 PageID #: 119

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
FRANKLIN KINSEY,
Plaintiff,
v.
SOUTHEAST CORRECTIONAL CENTER,
et al.,
Defendants.

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No. 1:22-CV-65 ACL

MEMORANDUM AND ORDER
This matter is before the Court on review of the second amended complaint filed by selfrepresented plaintiff Franklin Kinsey. 1 ECF No. 13. For the reasons discussed below, the Court
will provide plaintiff with one final opportunity to amend her complaint.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), 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 may be granted. An
action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S.
319, 328 (1989). An action fails to state a claim upon which relief may 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).
“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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether a complaint states a plausible

Plaintiff states she identifies as a trans-woman. ECF No. 1 at 3. The Court will, therefore, use the pronouns “she”
and “her” when referring to plaintiff.
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claim for relief is a context-specific task that requires the reviewing court to draw upon judicial
experience and common sense. Id. at 679. The court must assume the veracity of well-pleaded
facts but need not accept as true “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555).
This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429
U.S. 97, 106 (1976). This means that “if the essence of an allegation is discernible,” the court
should “construe the complaint in a way that permits the layperson’s claim to be considered within
the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone
v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even self-represented complaints 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). Federal courts are not required to assume facts that are not alleged,
Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules in order to excuse
mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113
(1993).
The Complaint and First Amended Complaint
On May 16, 2022, plaintiff filed a four-page letter directed to “whom it may concern.”
ECF No. 1. The letter alleged various Eighth Amendment violations and appeared to be an attempt
by plaintiff to initiate a prisoner civil rights complaint under 42 U.S.C. § 1983. The letter was
accompanied by a motion for appointment of counsel. ECF No 2.
On May 23, 2022, the Court reviewed the letter and explained to plaintiff that it was
defective as a complaint commencing a civil case because it was not drafted on a Court-provided
form as required by Local Rule 2.06(A). ECF No. 4 at 1 (“All actions brought by self-represented
plaintiffs . . . should be filed on Court-provided forms”). In consideration of plaintiff’s self-

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represented status, the Court directed her to submit an amended complaint. Plaintiff was provided
with the proper Court-form as well as detailed instructions on how to format and allege her claims.
Plaintiff’s request for counsel was denied, in part, because “she ha[d] yet to submit a proper
complaint on a Court-form identifying the specific defendants she wishe[d] to sue.” Id. at 3.
On June 23, 2022, plaintiff filed her amended complaint. The amendment was submitted
on a Court-provided ‘Prisoner Civil Rights Complaint’ form pursuant to 42 U.S.C. § 1983. ECF
No. 5. Seven defendants were listed in the caption: (1) C.O. I Effam; (2) C.O. I. Griffin; (3) Nurse
Lizz; (4) Nurse Amy; (5) Nurse Trent; (6) Cpt. Stewart; and (7) C.O. II Koch. The form indicated
an intent to sue all defendants in both their official and individual capacities.
In the section designated to provide her statement of claim, plaintiff did not provide any
allegations against the named defendants. Instead, a fellow inmate, Mr. Lamont Williamson, wrote
a message to the Court asking that plaintiff be appointed counsel because she does not have the
“skills, education, and experience to represent and litigate her case.” Id. at 5-6. Mr. Williamson
also attached a “Declaration” and letter to the Court, in which he described an incident in which
plaintiff fell down the stairs. See ECF No. 8. Plaintiff did not sign the portion of the form complaint
designated to declare under penalty of perjury that the information provided was true. See id. at
13. To the contrary, plaintiff attached a one-page document titled, “V[e]rification Notice,”
claiming she “did not have any partaking in the prepar[]ing[,] drafting[,] or writing” of the
amended complaint “other than [to] explain and answer Mr. Williamson’s questions about” her
education, experience, awareness of staff members names, and financial information. Id. at 14.
On July 19, 2022, the Court reviewed plaintiff’s amended complaint pursuant to 28 U.S.C.
§ 1915. ECF No. 10. The Court determined the amendment was defective because plaintiff did not
sign the section designated to declare under penalty of perjury that her allegations were true and

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correct. Id. at 6 (citing Fed. R. Civ. P. 11(a) and E.D. Mo. L.R. 2.01(A)(1)). The Court found the
attached “V[e]rification Notice” especially concerning because plaintiff stated she did not
participate in preparing, drafting, or writing the amended complaint. Id. Consequently, plaintiff
was directed to submit a second amended complaint with her signature. Her request for
appointment of counsel was again denied without prejudice because she had “yet to properly
submit a signed complaint with a statement of claim in compliance with the Federal Rules of Civil
Procedure and Local Rules of this Court.” Id. at 9.
Third Motion for Appointment of Counsel
On July 29, 2022, Mr. Williamson submitted a ten-page letter addressed to the
“Administrator of the Court.” ECF No. 11. He states he has a high school education, experience
filing § 1983 complaints, and understands the Federal Rules of Civil Procedure and this Court’s
Local Rules. He asserts his opinion that this Court has unfairly denied plaintiff’s requests for
appointment of counsel due to her lack of education. He also takes issue with the Court’s July 19,
2022 Order directing plaintiff to file a second amended complaint.
Plaintiff subsequently submitted a signed third motion for appointment of counsel, which
states:
Your Honor I hope I did this right. Sorry for my handwriting and also I apologize
for utilizing help like I am aloud [sic] to do! Mr. Williams drafted all document[s]
even the first! [H]e wrote Court Admin[i]strat[o]r and sent all responses! He has
been let out [of] the hole and I now am in dire need for help. . . . I am asking again
for appointment of counsel.
ECF No. 12.
The Court will strike Mr. Williamson’s letter as a frivolous filing. “An inmate may not
appear as counsel or file pleadings in another inmate’s case, and no agreement between inmates
for legal assistance will be enforced by this court.” Moody v. Cory, 2010 WL 147268, at *2 (D.

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Kan. Jan. 11, 2010). Plaintiff is warned that a non-attorney (like Mr. Williamson) may not
represent someone else in federal court, which includes filing papers on behalf of a self-represented
litigant. See 28 U.S.C. § 1654 (stating that in all United States courts, “the parties may plead and
conduct their own cases personally or by counsel”); Iannaccone v. Law, 142 F.3d 553, 558 (2d
Cir. 1998) (“because pro se means to appear for one’s self, a person may not appear on another’s
behalf in the other’s cause. A person must be litigating an interest personal to him.”); Lewis v.
Lenc–Smith Mfg. Co., 784 F.2d 829, 830 (7th Cir. 1986) (non-lawyers may only represent
themselves because “an individual may appear in the federal courts only pro se or through
counsel”). As such, it is entirely inappropriate for Mr. Williamson, or any other non-attorney
inmate, to file letters, motions, memoranda, or any correspondence in this case on plaintiff’s
behalf.
Additionally, the Court will deny plaintiff’s third request for counsel for the same reasons
it has denied the first and second motions. See ECF Nos. 4 and 10. Plaintiff has yet to assert
allegations that pass initial review. Moreover, the factual and legal issues presented in her original,
first, and second complaints are not complex. If this case passes initial review, the factual and legal
determinations in this action will relate to plaintiff’s fall from the stairs and whether there was
deliberate indifference to plaintiff’s serious medical needs. The Court does not anticipate that
further investigation into these facts, outside of normal discovery, would be necessary for plaintiff
to present her case.
Second Amended Complaint
On August 8, 2022, plaintiff filed her second amended complaint, which is properly signed
and dated. ECF No. 13. She names the same seven defendants: (1) C.O. I Effam; (2) C.O. I. Griffin;
(3) Nurse Lizz; (4) Nurse Amy; (5) Nurse Trent; (6) Cpt. Stewart; and (7) C.O. II Koch. She

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indicates she is suing Effan and Griffin in their official capacities only, and is silent as to the
remaining defendants. Plaintiff asserts all defendants work at the Southeast Correctional Center in
Charleston, Missouri and are employees of the Missouri Department of Corrections.
Plaintiff alleges that on April 28, 2022 she fell down the stairs. After the fall, she states
she was unable to walk and was taken to medical on a backboard. Plaintiff alleges she had a bottom
walk restriction due to seizures, but defendant Effam failed to “adhere to [her] warnings of [her]
medical lay-ins.” Plaintiff further asserts that defendant Nurses Lizz, Amy, and Trent “failed to
properly assist [her] medically,” and defendants Koch and Stewart “drag[ged] [her] back to 2 house
(her cell).” After receiving an X-ray, she was told she “had a bruised/swollen tend[o]n and was
giv[e]n a wheelchair and a[n] ace wrap.”
For relief, plaintiff seeks transfer to a separate institution and damages in the amount of
one million dollars for physical and psychological pain.
Discussion
A. Official Capacity Claims
Plaintiff indicates she is suing two of the defendants in their official capacities only. She
is silent as to whether she brings this action against the remaining five defendants in their official
capacity, individual capacity, or both. When a plaintiff does not specify whether a defendant is
being sued in his personal or official capacity, the court interprets the complaint as including
only official capacity claims. Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995).
This pleading requirement is strictly enforced by the Eighth Circuit. See Murphy v. Arkansas, 127
F.3d 750, 755 (8th Cir. 1997). Thus, the Court will interpret the instant complaint as stating only
official capacity claims against all seven defendants.

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In an official capacity claim against an individual, the claim is actually “against the
governmental entity itself.” White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017) (internal
citation omitted). Thus, a “suit against a public employee in his or her official capacity is merely
a suit against the public employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th
Cir. 1999). Here, defendants are all employees at SECC which is a Missouri Department of
Corrections (“MDOC”) facility and state agency. Naming a state official in his or her official
capacity is the equivalent of naming the government entity that employs the official – the State
itself. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). “Section 1983 provides for an
action against a ‘person’ for a violation, under color of law, of another’s civil rights.” McLean v.
Gordon, 548 F.3d 613, 618 (8th Cir. 2008). However, “neither a State nor its officials acting in
their official capacities are ‘persons’ under § 1983.” Will, 491 U.S. at 71.
In addition, in the absence of a waiver, the Eleventh Amendment bars a § 1983 suit against
a state official acting in his or her official capacity. Morstad v. Dep't of Corr. & Rehab., 147 F.3d
741, 744 (8th Cir. 1998); see also Andrus ex rel. Andrus v. Ark., 197 F.3d 953, 955 (8th Cir. 1999)
(“A claim for damages against a state employee in his official capacity is barred under the Eleventh
Amendment.”). “Sovereign immunity is the privilege of the sovereign not to be sued without its
consent.” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011). The Eleventh
Amendment has been held to confer immunity on an un-consenting state from lawsuits brought in
federal court by a state’s own citizens or the citizens of another state. Edelman v. Jordan, 415 U.S.
651, 662-63 (1974); see also Webb v. City of Maplewood, 889 F.3d 483, 485 (8th Cir. 2018) (“The
Eleventh Amendment protects States and their arms and instrumentalities from suit in federal
court.”); Dover Elevator Co. v. Ark. State Univ., 64 F.3d 442, 446 (8th Cir. 1995) (“The Eleventh
Amendment bars private parties from suing a state in federal court.”); Egerdahl v. Hibbing Cmty.

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Coll., 72 F.3d 615, 618-19 (8th Cir. 1995) (“Generally, in the absence of consent a suit in which
the State or one of its agencies or departments is named as the defendant is proscribed by the
Eleventh Amendment.” (Internal quotation and citation omitted)).
Thus, plaintiff’s claims against defendants in their official capacities are subject to
dismissal.
B. Individual Capacity
As discussed above, plaintiff has not brought this action against defendants in their
individual capacities. Consequently, the Court will not review plaintiff’s complaint under 28
U.S.C. § 1915 as to whether it can survive initial review against the named defendants in their
individual capacities. However, in consideration of plaintiff’s self-represented status and the
severity of the allegations, the Court will permit her to file a final third amended complaint. If
plaintiff fails to sue defendants in their individual capacities, this action will be dismissed after
this Court’s review of her third amended complaint.
If plaintiff wishes to sue defendants in their individual capacities, plaintiff must specifically
say so in the amended complaint, and must allege facts connecting the defendant to the challenged
action. See 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). “It is not enough to allege that [a] ‘defendant[ ]’
refused to treat his injuries. A federal complaint must contain the ‘who, what, when and where’ of
what happened, and each defendant must be linked to a particular action.” Drummer v. Corizon
Corr. Health Care, 2016 WL 3971399, at *1 (E.D. Mo. July 25, 2016). For example, plaintiff
generally alleges Nurses Lizz, Amy, and Trent “failed to properly assist [her] medically,” but she
does not allege the specific treatment she needed and how they denied her.

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C. Request for Transfer to another Institution
Lastly, plaintiff's request for transfer to another institution is unavailable relief in this
matter, even if her underlying claims were otherwise meritorious. See e.g., Morgan v. Francis,
2022 WL 2354950, at *4 (E.D. Mo. June 30, 2022) (“Plaintiff has no constitutional liberty interest
in being transferred to a different prison facility.”). Prisoners have no liberty interest in assignment
to any particular prison. Moorman v. Thalacker, 83 F.3d 970, 973 (8th Cir. 1996) (citing Meachum
v. Fano, 427 U.S. 215, 224 (1976)). Transfers to another prison are entirely within the discretion
of prison officials, Lyon v. Farrier, 727 F.2d 766, 768 (8th Cir.1984), and prisoners have no
justifiable expectation that they will be incarcerated in any particular prison within a state. Olim v.
Wakinekona, 461 U.S. 238, 245 (1983); Murphy v. Missouri Dept. of Correction, 769 F.2d 502,
503 (8th Cir.1985). Any protected interest plaintiff might have in being incarcerated in a particular
state prison would have to be created by state law. See Hewitt v. Helms, 459 U.S. 460, 469 (1983).
Plaintiff has failed to allege the existence of such a law.
Instructions on Amending the Complaint
Plaintiff is advised that the filing of a third amended complaint completely replaces the
previous complaints, so it must include all claims plaintiff wishes to bring. See In re Wireless Tel.
Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005) (“It is well-established that an
amended complaint supersedes an original complaint and renders the original complaint without
legal effect”). Any claims from any other complaints or supplements that are not included in the
second amended complaint will be deemed abandoned and will not be considered. Id. Plaintiff
must type or neatly print the third amended complaint on the Court-provided prisoner civil rights
complaint form, and the third amended complaint must comply with the Federal Rules of Civil
Procedure. See E.D. Mo. L.R. 2.06(A).

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The Federal Rules of Civil Procedure require litigants to formulate their pleadings in an
organized and comprehensible manner. Even self-represented litigants are obligated to abide by
the Federal Rules of Civil Procedure and to plead specific facts as to each named
defendant. See U.S. v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). Plaintiff is required to set out her
alleged claims in a simple, concise, and direct manner, and also the facts supporting her claims as
to each named defendant. See Fed. R. Civ. P. 8(a)(2) (complaint should contain short and plain
statement of claims); 8(d)(1) (each claim shall be simple, concise, and direct); 10(b) (parties are to
separate their claims within their pleadings and the contents of which shall be limited as far as
practicable to a single set of circumstances). Plaintiff should fill out the complaint form in its
entirety.
In the “Caption” section of the complaint form, plaintiff must state the first and last name,
to the extent she knows it, of the defendant or defendants she wants to sue. See Fed. R. Civ. P.
10(a) (“The title of the complaint must name all the parties”). Plaintiff must indicate whether
she intends to sue each defendant in his or her individual capacity, official capacity, or both.
Plaintiff is permitted to attach additional pages, if necessary, to list each defendant named in the
Caption and specify: (1) the person’s job title; and (2) in what capacity/capacities the person is
being sued. Plaintiff should avoid naming anyone as a defendant unless that person is directly
related to her claim(s).
In the “Statement of Claim” section, plaintiff should begin by writing the defendant’s
name. In separate, numbered paragraphs under that name, plaintiff should write the specific
facts supporting her claim or claims against that defendant. If plaintiff is suing more than
one defendant, she should proceed in the same manner with each one, separately writing
each individual defendant’s name and, under that name, in numbered paragraphs, the

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factual allegations supporting her claim or claims against that defendant. Plaintiff should only
include claims that arise out of the same transaction or occurrence, or simply put, claims that are
related to each other. See Fed. R. Civ. P. 20(a)(2). Alternatively, plaintiff may choose a single
defendant, and set forth as many claims as she has against him or her. See Fed. R. Civ. P. 18(a).
Plaintiff’s failure to make specific factual allegations against any defendant will result in that
defendant’s dismissal. Furthermore, the Court emphasizes that the “Statement of Claim” requires
more than “labels and conclusions or a formulaic recitation of the elements of a cause of
action.” See Neubauer v. FedEx Corp., 849 F.3d 400, 404 (8th Cir. 2017).
If Plaintiff is suing a defendant in an individual capacity, she is required to allege facts
demonstrating the personal responsibility of the defendant for harming her. Madewell v.
Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (stating that § 1983 liability “requires a causal link
to, and direct responsibility for, the deprivation of rights”). Plaintiff must explain the role of each
defendant so that each defendant will have notice of what he or she is accused of doing or failing
to do. See Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (stating
that the essential function of a complaint “is to give the opposing party fair notice of the nature
and basis or grounds for a claim.”).
If plaintiff fails to file a third amended complaint on a Court-provided form within thirty
(30) days in accordance with the instructions set forth herein, the Court may dismiss this action
without prejudice and without further notice to plaintiff.
Accordingly,
IT IS HEREBY ORDERED that the letter filed in this action by non-plaintiff Lamont
Williamson [ECF No. 11] is STRICKEN from the record as a frivolous filing.

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IT IS FURTHER ORDERED that plaintiff’s third motion for appointment of counsel
[ECF No. 12] is DENIED without prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff two blank
Prisoner Civil Rights Complaint forms. Plaintiff may request additional forms as needed.
IT IS FURTHER ORDERED that plaintiff shall file a third amended complaint on the
Court-provided form within thirty (30) days after the date of this Order, that is not later than
October 19, 2022. Plaintiff is advised that her filing will take the place of her original and amended
filings and will be the only pleading that this Court will review.
IT IS FINALLY ORDERED that if plaintiff fails to comply with this Order, the Court
will dismiss this action without prejudice and without further notice.
Dated this 19th day of September, 2022.

s/Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE

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