Reynolds v. Russell et al

Filing 4

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF No. 2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $10 within thirty (30) days of the date of this Orde r. Plaintiff is instructed to make his remittance payable to Clerk, United States District Court, and to include upon it: (1) hisname; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that plaintiff must file an amended complaint no later than twenty-one days from the date of this Order. If plaintiff fails to comply with this Order, the Court will dismiss this action without further proceedings. 2 ( Initial Partial Filing Fee due by 3/9/2016.) Signed by District Judge Jean C. Hamilton on 2/9/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KENNETH DA’VON REYNOLDS,
Plaintiff,
v.
HARRY RUSSELL, et al.,
Defendants.

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No. 4:16CV149 JCH

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 $10, which is twenty percent of his average monthly
balance. See 28 U.S.C. § 1915(b).
Standard of 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 under § 1983, 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.
The Complaint
Plaintiff brings this action against several officials at the Eastern Reception
Diagnostic and Correctional Center (“ERDCC”).

He alleges that defendant Ronald

Helms slammed his head into a wall while Helms was applying restraints. He also
alleges that Helms forced him to the floor and punched him several times. He says that
defendant James Rogers helped Helms hold him down during the use of force. And he
claims that defendant Unknown Byington was present at the scene and did not protect
him. Plaintiff claims that he was not disobeying orders when he was assaulted.
Plaintiff states that defendant Rachael Roessler, who is a nurse, assessed his
injuries and took a blood sample. He claims that she did not, however, record his injuries
in his medical records and that his medical records state that he had no injuries and
refused to cooperate.
Plaintiff seeks to hold defendant Harry Russell liable because he was the Warden
at ERDCC at that time.
Discussion
The complaint does not state whether defendants are being sued in their official or
individual capacities. Where a “complaint is silent about the capacity in which [plaintiff]
is suing defendant, [a district court must] interpret the complaint as including only
official-capacity claims.” Egerdahl v. Hibbing Community College, 72 F.3d 615, 619
(8th Cir. 1995); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989).
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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. 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 fails to state a claim upon which relief can be granted.
To state a claim for medical mistreatment, plaintiff must plead facts sufficient to
indicate a deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S.
97, 106 (1976); Camberos v. Branstad, 73 F.3d 174, 175 (8th Cir. 1995). Allegations of
mere negligence in giving or failing to supply medical treatment will not suffice. Estelle,
429 U.S. at 106. In order to show deliberate indifference, plaintiff must allege that he
suffered objectively serious medical needs and that defendants actually knew of but
deliberately disregarded those needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.
1997). Plaintiff does not allege that defendant Roessler disregarded his medical needs.
as a result, plaintiff’s Eighth Amendment claim against her fails.
Plaintiff may be attempting to allege that Roessler engaged in a conspiracy to
conceal his injuries to support the correctional officers’ version of the incident. To
properly plead a claim for civil conspiracy under § 1983, a plaintiff must include factual
allegations showing a “meeting of the minds” concerning unconstitutional conduct;
although an express agreement between the purported conspirators need not be alleged,
there must be something more than the summary allegation of a conspiracy before such a
claim can withstand a motion to dismiss. See Mershon v. Beasely, 994 F.2d 449, 451 (8th
Cir. 1993). Liberally construing the complaint, the Court finds no factual allegations
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showing that a meeting of the minds occurred. Additionally, the Court is not aware of a
constitutional mandate requiring nurses to correctly record a prisoner’s injuries or
behavior. This appears to go to negligence, which is not actionable under § 1983.
Estelle, 429 U.S. at 106.
Plaintiff’s claims against Russell do not state a plausible claim for relief. See
Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) (“a general responsibility for
supervising the operations of a prison is insufficient to establish the personal involvement
required to support liability.”).
Because plaintiff is proceeding pro se, the Court will allow plaintiff to file an
amended complaint. Plaintiff is warned that the filing of an amended complaint
replaces the original complaint, and so he must include each and every one of his
claims in the amended complaint.

E.g., In re Wireless Telephone Federal Cost

Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). Any claims from the
original complaint that are not included in the amended complaint will be
considered abandoned. Id. Plaintiff must allege how each and every defendant is
directly responsible for the alleged harm.

In order to sue defendants in their

individual capacities, plaintiff must specifically say so in the complaint. If plaintiff
fails to sue defendants in their individual capacities, this action may be subject to
dismissal.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
[ECF No. 2] is GRANTED.
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IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of
$10 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.
IT IS FURTHER ORDERED that plaintiff must file an amended complaint no
later than twenty-one days from the date of this Order. If plaintiff fails to comply with
this Order, the Court will dismiss this action without further proceedings.
Dated this 9th day of February, 2016.
\s\ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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