Trotter v. Lawson et al

Filing 11

MEMORANDUM AND ORDER re: 2 ORDERED that plaintiff's motion to proceed in formapauperis [Doc. #2] is GRANTED. FURTHER ORDERED that plaintiff shall pay an initial filing fee of $97.46 within thirty (30) days of the date of this Order. FURT HER ORDERED that the Clerk shall issue process or cause process to be issued upon the second amended complaint [Doc. #9] as to defendants Walter Lawson, Stephen McGee, Scott McFarland, David L. Shipley, Bobby Currington, and Robert Thebeau in their i ndividual capacities only. FURTHER ORDERED that defendants Walter Lawson, Stephen McGee, Scott McFarland,David L. Shipley, Bobby Currington, and Robert Thebeau, in their individual capacities, shall reply to the second amended complaint within the t ime provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. FURTHER ORDERED that plaintiff's official-capacity claims against all defendants are DISMISSED without prejudice. FURTHER ORDERED that, as to defe ndant Steve Larkins, the Clerk shall not cause process to issue on the second amended complaint, because it is legally frivolous and fails to state a claim upon which relief can be granted.( Initial Partial Filing Fee due by 1/9/2014.). Signed by District Judge Jean C. Hamilton on 12/9/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CARLDEN TROTTER,
Plaintiff,
v.
WALTER LAWSON, et al.,
Defendants.

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No. 4:13-CV-1636-JCH

MEMORANDUM AND ORDER
This matter is before the Court upon review of plaintiff’s motion for leave to
proceed in forma pauperis [Doc. #2] and second amended complaint [Doc. #9]. For
the reasons stated below, the Court will grant plaintiff in forma pauperis status and
assess an initial partial filing fee of $97.46. In addition, the Court will (1) dismiss
defendant Steve Larkins; (2) dismiss plaintiff's official-capacity claims against all
defendants; and (3) order the Clerk of Court to issue process on the second amended
complaint as to all remaining defendants in their individual capacities.
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
$83.00 and an average monthly balance of $487.28. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $97.46, which is 20 percent of plaintiff’s average monthly deposit.
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
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law or in fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). 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, 129 S. Ct. 1937, 1950-51 (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 1949. Second, the
Court must determine whether the complaint states a plausible claim for relief. Id. at
1950-51. This is a “context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Id. at 1950. The plaintiff is required to
plead facts that show more than the “mere possibility of misconduct.” Id. The Court
must review the factual allegations in the complaint “to determine if they plausibly
suggest an entitlement to relief.”

Id. at 1951.

When faced with alternative

explanations for the alleged misconduct, the Court may exercise its judgment in
determining whether plaintiff’s proffered conclusion is the most plausible or whether
it is more likely that no misconduct occurred. Id. at 1950-52.

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In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the
complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). The Court must also weigh all factual allegations in favor of the plaintiff,
unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 3233 (1992).
The Second Amended Complaint
Plaintiff, an inmate at the Jefferson City Correctional Center, brings this action
pursuant to 42 U.S.C. § 1983 for alleged constitutional violations that took place at
the Eastern Reception and Diagnostic Correctional Center (“ERDCC”). Named as
defendants are Steve Larkins (ERDCC Superintendent) and ERDCC correctional
officers Walter Lawson, Stephen McGee, Scott McFarland, David L. Shipley, Bobby
Currington, and Robert Thebeau. Plaintiff alleges that he was brutally attacked on
February 7, 2010, and was denied prompt medical attention for his serious injuries.
Plaintiff is suing defendants in both their individual and official capacities.
Discussion
I. Official Capacity Claims
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).
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“[N]either a State nor its officials acting in their official capacity are ‘persons’ under
§ 1983.” Id. As a result, the second amended complaint is legally frivolous and fails
to state a claim upon which relief can be granted as to all named defendants in their
official capacities.
II. Individual Capacity Claims
A. Claims against defendants Walter Lawson, Stephen McGee, Scott
McFarland, David L. Shipley, Bobby Currington, and Robert
Thebeau
Plaintiff alleges that, following “an altercation with an officer Thomas”1 on or
about February 7, 2010, defendants Walter Lawson, Stephen McGee, Scott
McFarland, David L. Shipley, Bobby Currington, and Robert Thebeau repeatedly
“maliciously and sadistically” attacked him while he was handcuffed, thereby
resulting in serious physical and emotional injuries for which he was initially denied
medical care. Plaintiff's 42 U.S.C. § 1983 allegations against defendants Lawson,
McGee, McFarland, Shipley, Currington, and Thebeau in their individual capacities
state a claim for Eighth Amendment violations, and therefore, the Court will order
process to issue against said defendants.

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Officer Thomas is not a named defendant in this action.
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B. Defendant Steve Larkins
"Liability under section 1983 requires a causal link to, and direct responsibility
for, the alleged deprivation of rights." Madewell v. Roberts, 909 F.2d 1203, 1208
(8th Cir. 1990); see also 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). In the instant case, plaintiff claims that Larkins
“fail[ed] to correct [defendants’] misconduct,” and thereby encouraged “the
continuation of the misconduct and withholding [of video] footage [of the assaults].”
Because plaintiff does not set forth any facts indicating that Steve Larkins was
directly involved in or personally responsible for the incidents that caused him injury,
the Court will dismiss this action as to defendant Larkins. See 28 U.S.C. §
1915(e)(2)(B).
In accordance with the foregoing,
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
$97.46 within thirty (30) days of the date of this Order. Plaintiff is instructed to make
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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 be issued upon the second amended complaint [Doc. #9] as to defendants
Walter Lawson, Stephen McGee, Scott McFarland, David L. Shipley, Bobby
Currington, and Robert Thebeau in their individual capacities only.
IT IS FURTHER ORDERED that defendants Walter Lawson, Stephen
McGee, Scott McFarland, David L. Shipley, Bobby Currington, and Robert Thebeau,
in their individual capacities, shall reply to the second amended 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 official-capacity claims against
all defendants are DISMISSED without prejudice. See 42 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that, as to defendant Steve Larkins, the Clerk
shall not cause process to issue on the second amended complaint, because it is
legally frivolous and fails to state a claim upon which relief can be granted. See 28
U.S.C. § 1915(e)(2)(B).

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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 shall accompany this Memorandum and
Order.
Dated this 9th day of December, 2013.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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