Burnett v. St. Charles County Jail/D.O.C. et al

Filing 9

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel [Doc. # 7 ] is DENIED without prejudice. See order for additional details. John A. Ross on 3/20/2014. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MATTHEW BURNETT,

)
)
Plaintiff,
)
)
v.
)
)
ST. CHARLES COUNTY JAIL, et al., )
)
Defendants.
)

No. 4:13-CV-1990-JAR

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Matthew Burnett
(registration no. n/a) for leave to commence this action without payment of the
required filing fee. The Court will grant the motion and assess plaintiff an initial
partial filing fee of $10.50. In addition, the Court will dismiss this action as to
defendant St. Charles County Jail and will instruct the Clerk of Court to cause process
to issue as to defendant Aykan Acikgoz in his individual capacity, as more fully set
forth below.
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
$52.50, and an average monthly balance of $38.35. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $10.50, 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

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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).
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 “contextspecific 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, 1951-52.

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The Complaint and Supplement
Plaintiff, an inmate at the St. Charles County Department of Corrections, seeks
monetary relief in this action brought pursuant to 42 U.S.C. § 1983. Named as
defendants are the St. Charles County Jail and correctional officer Aykan Acikgoz.
Plaintiff alleges that on July 23, 2013, he was severely beaten by several other
inmates, while defendant Acikgoz “just stood there watching with a smile on his face”
and “allowed them to continue pummeling [plaintiff].” Plaintiff further alleges that,
to cover up his wrongdoing, Acikgoz issued him a false conduct violation, which “put
[plaintiff] in disciplinary isolation for 10 days.” In addition, plaintiff generally asserts
that necessary medical attention was delayed. Plaintiff is suing Acikgoz in both his
individual and official capacities.
Discussion
Having carefully reviewed plaintiff’s allegations, the Court will dismiss this
action as to defendant St. Charles County Jail, because jails are not suable entities.
See Lair v. Norris, 32 Fed. Appx. 175, 2002 WL 496779 (8th Cir. 2002); Alsbrook v.
City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (§ 1983 suit cannot be brought
against state agency), cert. dismissed, 529 U.S. 1001 (2000); Marsden v. Fed. Bureau
of Prisons, 856 F. Supp. 832, 836 (S.D.N.Y. 1994) (jails are not entities amenable to
suit).
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In addition, the Court will dismiss this action as to defendant Aykan Acikgoz
in his official capacity. Naming a government official in his or her official capacity
is the equivalent of naming the government entity that employs the official. Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). To state a claim against a
municipality or a government official in his or her official capacity, a plaintiff must
allege that a policy or custom of the government entity is responsible for the alleged
constitutional violation. Monell v. Dep’t of Social Services, 436 U.S. 658, 690-91
(1978). The instant complaint does not contain any allegations that a policy or custom
of a government entity was responsible for the alleged violations of plaintiff’s
constitutional rights. As a result, the complaint is legally frivolous and fails to state
a claim upon which relief can be granted as to defendant Aykan Acikgoz in his official
capacity.
With regard to plaintiff’s allegations that defendant Acikgoz “stood there
watching with a smile on his face” while plaintiff was repeatedly punched and struck
in the head and face, the Court finds that the complaint states a Fourteenth
Amendment claim of deliberate indifference in failing to intervene and/or protect
plaintiff from the assault. As such, the Court will instruct the Clerk to issue process
on the complaint relative to this claim against Aykan Acikgoz in his individual
capacity.
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The Court will dismiss as legally frivolous plaintiff’s claim that Acikgoz
violated his due process rights when he issued plaintiff a false conduct violation,
resulting in ten days of disciplinary segregation. For the Due Process Clause to be
implicated, an inmate must be subjected to "atypical and significant hardship . . . in
relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472
(1995). Plaintiff's allegations do not indicate that he has suffered this type of atypical
and significant hardship, nor do they indicate that he has suffered the type of hardship
in which the state might conceivably create a liberty interest. Cf. id. at 485-86 (no
atypical and significant hardship where inmate spent thirty days in solitary
confinement); Hemphill v. Delo, 124 F.3d 208 (8th Cir. 1997) (same; four days locked
in housing unit, thirty days in disciplinary segregation, and approximately 290 days
in administrative segregation); Freitas v. Ault, 109 F.3d 1335, 1337-38 (8th Cir. 1997)
(same; ten days administrative segregation and thirty days on "on-call" status, as well
as loss of higher paying job and numerous privileges); Wycoff v. Nichols, 94 F.3d
1187, 1190 (8th Cir. 1996) (same; ten days disciplinary detention and 100 days in
maximum-security cell); Moorman v. Thalacker, 83 F.3d 970, 973 (8th Cir. 1996)
(same; fifteen days of highest-level disciplinary detention and 107 days of lessrestrictive disciplinary detention).

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The Court will also dismiss plaintiff’s general claims of “negligence and
incompetence” on behalf of a “shift supervisor,” as well as “the Superior Correctional
Officers” for failing to see that he received proper medical attention and was not
housed with any of the inmates who had previously attacked him. Mere negligence
does not rise to the level of a constitutional violation. See Daniels v. Williams, 474
U.S. 327, 328 (1986); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (mere negligence
is not cognizable as Eighth Amendment violation); Morton v. Becker, 793 F.2d 185,
188 n.3 (8th Cir. 1986) (Fourteenth Amendment Due Process Clause is not implicated
by state official’s negligent act causing unintended loss of or injury to life, liberty, or
property). Moreover, supervisors cannot be held vicariously liable under § 1983 for
the actions of a subordinate. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009); see
also Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (liability under § 1983
requires a causal link to, and direct responsibility for, the alleged deprivation of
rights); 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).
As to plaintiff’s motion for appointment of counsel [Doc. #7], “[a] pro se
litigant has no statutory or constitutional right to have counsel appointed in a civil
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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 Acikgoz to respond to plaintiff’s Fourteenth Amendment claims.
Consequently, the motion shall 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
$10.50 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.

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IT IS FURTHER ORDERED that, as to defendant Aykan Acikgoz 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. § 1915e(2)(B).
IT IS FURTHER ORDERED that, as to defendant St. Charles County Jail,
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. § 1915e(2)(B).
IT IS FURTHER ORDERED that plaintiff’s general claims of “negligence
and incompetence” against unknown supervisors are DISMISSED, without prejudice,
as legally frivolous. See 28 U.S.C. § 1915e(2)(B).
IT IS FURTHER ORDERED that, as to defendant Aykan Acikgoz in his
individual capacity, the Clerk shall issue process or cause process to be issued on the
complaint relative to plaintiff’s Fourteenth Amendment deliberate indifference claims.
All other claims against this defendant are legally frivolous and are dismissed, without
prejudice. See 28 U.S.C. § 1915e(2)(B).
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendant Aykan Acikgoz in his individual capacity shall reply to plaintiff’s

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Fourteenth Amendment deliberate indifference claims within the time provided by the
applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #7] is DENIED without prejudice.
IT IS FURTHER ORDERED that, pursuant to the Court's differentiated case
management system, this case is assigned to Track 5B (standard prisoner actions).
A separate Order of Partial Dismissal shall accompany this Memorandum and
Order.
Dated this 20th Day of March, 2014.

UNITED STATES DISTRICT JUDGE

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