Pritchett v. Warden of ERDCC et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. 2] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $1.98 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 ori ginal proceeding. IT IS FURTHER ORDERED that defendants Warden of ERDCC, Dwayne Kemper, Unknown Montgomery, Unknown Strange, Marvin Brawley, Unknown Bailey, and Shawn Owens are DISMISSED without prejudice, because they are not properly joined in this action under Rule 20(a)(2) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that, as to defendant Lisa Jones, the Clerk shall not issue process or cause process to issue, because the complaint is legally frivolous and fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that, as to defendant unknown Dause in his official capacity, the Clerk shall not issue process or cause process to issue, because the complaint is lega lly frivolous and fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that, as to defendant Unknown Dause in his individual capacity, the Clerk shall issue process or cause process to be issued on the complaint. IT IS FURTHER ORDERED that defendant Unknown Dause shall reply to the complaint within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. See 42 U.S.C. § 1997e(g)(2). IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. 3] is DENIED, without prejudice. IT IS FURTHER ORDERED that, pursuant to this Court's differentiated case management system, this case is assigned to Track 5B (prisoner actions-standard). A separate Order of Partial Dismissal will accompany this Memorandum and Order.. Signed by District Judge Rodney W. Sippel on 10/9/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ERIC PRITCHETT,
Plaintiff,
v.
WARDEN OF ERDCC, et al.,
Defendants.

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No. 4:13-CV-1406-RWS

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Eric Pritchett (registration
no. 1176335) 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 therefore, he will be assessed an
initial partial filing fee of $1.98. See 28 U.S.C. § 1915(b)(1). In addition, the Court
will (1) order process to issue as to defendant Unknown Dause in his individual
capacity; (2) dismiss this action as to defendant Lisa Jones pursuant to 28 U.S.C. §
1915(e)(2)(B); (3) dismiss this action as to defendants Warden of ERDCC, Dwayne
Kemper, Unknown Montgomery, Unknown Strange, Marvin Brawley, Unknown
Bailey, and Shawn Owens, because they are not properly joined in this case under

Rule 20(a)(2) of the Federal Rules of Civil Procedure; and (4) deny plaintiff’s motion
for appointment of counsel.
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 six-month 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
$9.92, and an average monthly balance of $.84. Plaintiff has insufficient funds to pay
the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$1.98, which is 20 percent of plaintiff’s average monthly deposit.
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28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may 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 against a defendant who is
immune from such relief. An action is frivolous if “it lacks an arguable basis in either
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is
malicious when it is undertaken for the purpose of harassing litigants and not for the
purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 46163 (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).
The Complaint
Plaintiff, an inmate at the Southeast Correctional Center, seeks monetary relief
under 42 U.S.C. § 1983 for numerous constitutional violations that allegedly occurred
during his incarceration at the Eastern Reception and Diagnostic Correctional Center
("ERDCC"). Named as defendants are the Warden of ERDCC, Dwayne Kemper
(Deputy Director, Missouri Department of Corrections), Unknown Montgomery
(ERDCC Case Manager), Lisa Jones (ERDCC Inspector General), and ERDCC
Correctional Officers Unknown Strange, Marvin Brawley, Unknown Bailey,
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Unknown Dause, and Shawn Owens. Plaintiff is suing defendants in both their
individual and official capacities.
A review of the complaint reveals that, on pages 8, 9, and 24, plaintiff asserts
claims against defendants Unknown Dause and Lisa Jones, arising out of an August
1, 2012 incident. Plaintiff alleges that Dause physically assaulted him while plaintiff
was handcuffed. He states that Jones “was made aware of [this] situation with the
very same letter listed herein [but] she failed to grant relief or redress.”
On pages 9 and 10 of the complaint, plaintiff claims that he was pepper sprayed
by “a Sgt.” between August 27, 2012, and September 1, 2012. Plaintiff states that he
“was then left on [an iron] bench to burn in these chemicals.” In addition, plaintiff
believes that one of his fingers was broken, for which he never received medical
attention. Plaintiff states that defendant Montgomery denied his request to review
video cameras that had recorded the event.
On pages 10 and 11 of the complaint, plaintiff asserts a claim against defendant
Owens. Plaintiff states that upon being assigned to administrative segregation on
October 2, 2012, Owens refused plaintiff his linens and confiscated a “3 pack of Ivory
soap, . . . reading books and several other things.” In addition, plaintiff claims that
Owens physically assaulted him and threatened him.
On pages 11-14 of the complaint, plaintiff claims that defendant Brawley
refused to give him a food tray on October 3, 2012. Thereafter, defendants Brawley,
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Strange, and Bailey started “bad mouthing” and physically assaulting plaintiff,
resulting in serious physical injuries.
Discussion
1. Permissive Joinder
The complaint contains a host of allegations against nine named defendants.
At issue is whether the defendants are properly joined in the instant lawsuit. See
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (district court should question
joinder of defendants and claims in prisoner cases). The Court holds that they are not.
Rule 18(a) of the Federal Rules of Civil Procedure states, “A party asserting
a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim,
may join, either as independent or as alternate claims, as many claims, legal,
equitable, or maritime, as the party has against an opposing party.”
Rule 20(a)(2) of the Federal Rules of Civil Procedure allows for joinder of
defendants if “any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or series
of transactions or occurrences; and . . . any question of law or fact common to all
defendants will arise in the action.”
The allegations against defendants Dause and Jones on pages 8, 9, and 24 of
the complaint do not pertain to the same defendants or arise out of the same series of

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transactions and occurrences as those in the remainder of the complaint. As a result,
defendants are not properly joined under Rule 20(a)(2).
Because plaintiff’s allegations first address his claims against Dause and Jones,
and because defendants are not properly joined under Rule 20(a)(2), the Court will
dismiss this action without prejudice as to defendants Warden of ERDCC, Dwayne
Kemper, Unknown Montgomery, Unknown Strange, Marvin Brawley, Unknown
Bailey, and Shawn Owens. If plaintiff wishes to pursue his claims against these
individuals, he must file separate complaints against them, in compliance with the
Federal Rules of Civil Procedure.
2. Section 1915(e)(2)(B) Review - Defendants Dause and Jones
As set forth on pages 8, 9, and 24 of the complaint, plaintiff alleges that
Unknown Dause physically assaulted him while plaintiff was handcuffed, and he
claims that Lisa Jones “was made aware of [this] situation with the very same letter
listed herein [but] she failed to grant relief or redress.”
Plaintiff is suing Dause and Jones in both their individual and official
capacities. Naming a government official in his or her official capacity is the
equivalent of naming the government entity that employs the official, in this case the
State of Missouri. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
“[N]either a State nor its officials acting in their official capacity are ‘persons’ under
§ 1983.” Id. As a result, the complaint is legally frivolous and fails to state a claim
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upon which relief can be granted as to defendants Dause and Jones in their official
capacities.
Considering plaintiff’s individual capacity claims, the Court finds that his
allegations against defendant Unknown Dause are sufficient to state a claim for
Eighth Amendment violations. Plaintiff’s claims against Lisa Jones, however, are
legally frivolous and will be dismissed. 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); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory
inapplicable in § 1983 suits); Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997)
(noting that general responsibility for supervising operations of prison is insufficient
to establish personal involvement required to support liability under § 1983); Rivera
v. Goord, 119 F.Supp.2d 327, 344 (S.D.N.Y.2000) (allegations that inmate wrote to
prison officials and was ignored insufficient to hold those officials liable under §
1983); Woods v. Goord, 1998 WL 740782, at *6 (S.D.N.Y. Oct.23, 1998) (receiving
letters or complaints does not render prison officials personally liable under § 1983);
Watson v. McGinnis, 964 F.Supp. 127, 130 (S.D.N.Y.1997) (allegations that an
official ignored a prisoner's letter are insufficient to establish liability).

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3. Plaintiff’s Motion for Counsel
“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 claim. Id.
After reviewing these factors, the Court finds that the appointment of counsel
is not warranted at this time. This case is neither factually nor legally complex.
Moreover, it is evident that plaintiff is able to present his claims, because the Court
is ordering defendant Dause to respond to plaintiff’s claims. Consequently, the
motion will be denied at this time, 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 plaintiff shall pay an initial filing fee of
$1.98 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

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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 defendants Warden of ERDCC, Dwayne
Kemper, Unknown Montgomery, Unknown Strange, Marvin Brawley, Unknown
Bailey, and Shawn Owens are DISMISSED without prejudice, because they are not
properly joined in this action under Rule 20(a)(2) of the Federal Rules of Civil
Procedure.
IT IS FURTHER ORDERED that, as to defendant Lisa Jones, the Clerk shall
not issue process or cause process to issue, because the complaint is legally frivolous
and fails to state a claim upon which relief can be granted. See 28 U.S.C. §
1915(e)(2)(B).
IT IS FURTHER ORDERED that, as to defendant unknown Dause in his
official capacity, the Clerk shall not issue process or cause process to issue, because
the complaint is legally frivolous and fails to state a claim upon which relief can be
granted. See 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that, as to defendant Unknown Dause in his
individual capacity, the Clerk shall issue process or cause process to be issued on the
complaint.

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IT IS FURTHER ORDERED that defendant Unknown Dause shall reply to
the complaint within the time provided by the applicable provisions of Rule 12(a) of
the Federal Rules of Civil Procedure. See 42 U.S.C. § 1997e(g)(2).
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #3] is DENIED, without prejudice.
IT IS FURTHER ORDERED that, pursuant to this Court’s differentiated case
management system, this case is assigned to Track 5B (prisoner actions-standard).
A separate Order of Partial Dismissal will accompany this Memorandum and
Order.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 9th day of October, 2013.

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