Decker v. Phelps County Jail et al

Filing 6

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, within twenty-one (21) days of the date of this Memorandum and Order, plaintiff shall submit an amended complaint in accordance with the instructions set forth herein. IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff a blank Prisoner Civil Rights Complaint form. Plaintiff may request additional forms as needed. If plaint iff fails to timely comply with this Memorandum and Order, the Court will dismiss this action without prejudice and without further notice. Signed by District Judge Catherine D. Perry on 10/17/17. (EAB) (Copy of Order and form mailed to plaintiff on 10/17/17).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DISTRICT

SILFORD DECKER,

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Plaintiff,
v.
PHELPS COUNTY JAIL, et al.,
Defendants.

No. 4:17-CV-2502 CDP

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Silford Decker for leave to
commence this action without prepayment of the filing fee. 1 Having reviewed plaintiff’s
financial information, the Court will grant plaintiff leave to proceed in forma pauperis. See 28
U.S.C. § 1915. In addition, the Court will allow plaintiff the opportunity to submit an amended
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 can be granted. A
pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause
of action will not do,” nor will a complaint suffice if it tenders bare assertions devoid of “further
factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)).
When conducting initial review pursuant to § 1915(e)(2), the Court must accept as true
the allegations in the complaint, and must give the complaint the benefit of a liberal construction.
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Plaintiff alleges that he is a civilly committed detainee. He will not be assessed a filing fee.
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Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the tenet that a court must accept the
allegations as true does not apply to legal conclusions, Iqbal, 556 U.S. at 678, and affording a
pro se complaint the benefit of a liberal construction does not mean that procedural rules in
ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed
without counsel. See McNeil v. U.S., 508 U.S. 106, 113 (1993). Even pro se complaints are
required to 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); see also Stone v. Harry, 364 F.3d 912, 914-15
(8th Cir. 2004) (federal courts are not required to “assume facts that are not alleged, just because
an additional factual allegation would have formed a stronger complaint”).
The Complaint
Plaintiff brings this action to redress violations of his civil rights, and names the Phelps
County Jail as defendant in this action. He also names Sergeant Michael J. Lorts of the Phelps
County Sheriff’s Department as a defendant, as well as Officer Kevin Ziglar of the Rolla Police
Department. Plaintiff brings his complaint against defendants in their official capacities only.
Plaintiff alleges that on September 3, 2015, he was “staggering” when he was walking
down the street in Rolla, Missouri, and he was stopped by unnamed Rolla police officers at
around 9:30 a.m. He claims that the officers took him by ambulance to the hospital without his
permission, and he “resisted” when they strapped him down and took blood from him. Plaintiff
alleges that at the hospital, he was taken by the unnamed officers to the chaplain’s office and
held down, where he “resisted” and asked if he was a Christian and how much he had to drink.
Plaintiff asserts that he “thinks” this is where the alleged “assault on a police officer” took place
which he later took an Alford plea on.

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Plaintiff states that he was arrested later that day and taken to the Phelps County Jail
where he was put through booking and was “assaulted for peeing on self on floor.” Plaintiff
claims that Sergeant Lorts tased him and withheld drinking water from him deliberately.
Plaintiff claims that after he was tased by Sergeant Lorts, Sergeant Lorts did not allow him to
wash the spray out of his eyes and strapped him to a chair as punishment for what he perceived
as bad behavior.
Plaintiff claims that after he was bonded out of Phelps County Jail in October of 2015,
his bond was revoked on April 4, 2016, and he was sent back to the Jail. Plaintiff asserts that he
was assaulted at the Jail by an unnamed person at that time and he was denied medical care.
Plaintiff has not, however, provided the Court with factual information as to who purportedly
acted unlawfully towards him on these occurrences and how these factual circumstances denied
him his Constitutional protections.
Discussion
The complaint is legally frivolous because the Phelps County Jail is not an entity that is
subject to a suit such as the one at bar. See Ketchum v. City of West Memphis, Ark., 974 F.2d 81,
82 (8th Cir. 1992) (departments or subdivisions of local government are “not juridical entities
suable as such.”).
In addition, 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, 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

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policy or custom of a government entity, such as Rolla or Phelps County, was responsible for the
alleged violations of plaintiff’s constitutional rights. As a result, the complaint fails to state a
claim upon which relief can be granted.
Further, plaintiff has failed to allege exactly what Officer Ziglar did to purportedly
violate his Constitutional rights. ALiability under § 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 action, plaintiff
has not set forth any facts indicating that Officer Ziglas was directly involved in or personally
responsible for the alleged violations of his constitutional rights. As a result, the complaint, as
currently written, fails to state a claim upon which relief can be granted with respect to Officer
Ziglar.
Because plaintiff is proceeding pro se, the Court will allow him to file an amended
complaint on a court-provided form. Plaintiff is warned that the filing of an amended complaint
replaces the original complaint, and so it must include all claims plaintiff wishes to bring. E.g.,
In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir.
2005). Plaintiff must submit the amended complaint on a court-provided form, and the amended
complaint must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure.
In the “Caption” section of the amended complaint, plaintiff must state the first and last
name, to the extent he knows it, of each defendant he wishes to sue. Plaintiff should also

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indicate whether he intends to sue each defendant in his or her individual capacity, official
capacity, or both.2
In the “Statement of Claim” section, plaintiff should begin by writing the first
defendant’s name. In separate, numbered paragraphs under that name, plaintiff should set forth
the specific factual allegations supporting his claim or claims against that defendant, as well as
the constitutional right or rights that defendant violated. 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 he has against that defendant. See Fed. R. Civ. P. 18(a).
If plaintiff is suing more than one defendant, he should proceed in the same manner with
each one, separately writing each individual defendant’s name and, under that name, in
numbered paragraphs, the allegations specific to that particular defendant and the right(s) that
defendant violated. Plaintiff’s failure to make specific and actionable allegations against any
defendant will result in that defendant’s dismissal from this case.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [Doc.
#2] is GRANTED.
IT IS FURTHER ORDERED that, within twenty-one (21) days of the date of this
Memorandum and Order, plaintiff shall submit an amended complaint in accordance with the
instructions set forth herein.
IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff a blank
Prisoner Civil Rights Complaint form. Plaintiff may request additional forms as needed.
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The failure to sue a defendant in his or her individual capacity may result in the dismissal of
that defendant.
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If plaintiff fails to timely comply with this Memorandum and Order, the Court will
dismiss this action without prejudice and without further notice.
Dated this 17th day of October, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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