Garner v. Lisenbe et al

Filing 6

MEMORANDUM AND ORDER re: 5 MOTION to Appoint Counsel filed by Plaintiff Travis Leroy Garner, Jr., 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Travis Leroy Garner, Jr. IT IS HEREBY ORDERED that p laintiff's motion to proceed in forma pauperis is GRANTED. [ECF No. 2] IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 within twenty-one (21) days of the date of this Order. Plaintiff is instructed to make his r emittance 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 the Clerk of Court Clerk shall issue process or cause process to issue upon plaintiff's complaint on defendants Richard Lisenbe and Matt Shults in their individual capacities.IT IS FURTHER ORDERED that defendant Steve Lorts is DISMISSED without pre judice. IT IS FURTHER ORDERED that plaintiff's official capacity claims are DISMISSED. IT IS FURTHER ORDERED that plaintiff's motion to appoint counsel is DENIED without prejudice. [ECF No. 5] An Order of Partial Dismissal will accompany this Memorandum and Order. (Initial Partial Filing Fee due by 6/21/2018.) Signed by District Judge Stephen N. Limbaugh, Jr on 5/31/18. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TRAVIS LEROY GARNER, JR.
Plaintiff,
v.
RICHARD LISENBE, MATT SHULTS,
and STEVE LORTS,
Defendants.

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No. 4:17-CV-2805 ACL

MEMORANDUM AND ORDER
Plaintiff Travis Leroy Garner, Jr., an inmate at Phelps County Jail, 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 $1.00, which reasonable
based upon the information the Court has about plaintiff’s finances. See Henderson v. Norris,
129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the Court with a certified
copy of his prison account statement, the Court should assess an amount “that is reasonable,
based on whatever information the court has about the prisoner’s finances”). Furthermore, after
reviewing the complaint, the Court will partially dismiss the complaint and will order the Clerk
to issue process or cause process to be issued on the non-frivolous portions of the complaint.
Legal Standard on Initial 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, 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.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
The Complaint
Plaintiff brings this 42 U.S.C. § 1983 action against Richard Lisenbe (Sheriff of Phelps
County), Matt Shults (Lieutenant, Jail Administrator of the Phelps County Jail), and Steve Lorts
(Sergeant) for violations of his rights under the First Amendment, Eighth Amendment, and
Fourteenth Amendment.

Plaintiff complains of overcrowding at the Phelps County Jail.

Plaintiff is housed in E-Pod which was designed to house 16 inmates—there are 16 bunks, 16
spaces for dining, and 2 toilets. Plaintiff alleges the average number of inmates in the E-Pod is
36, but at times can rise to 55 inmates.
Plaintiff alleges that because of the overcrowding, the jail is unsanitary, does not allow
recreation time, fresh air or daylight, and he has been forced to sleep on concrete when the jail
has run out of mattresses. He states he has to eat standing up or sitting on his bunk, and he has
spilled his tray of food twice causing him to go without eating. He states the E-Pod is so full,
“there is not room to move around,” and this has caused his extremities to atrophy. On one
occasion, while he was suffering severe stomach pains and severe diarrhea, plaintiff was forced
to wait more than two hours for a toilet. Plaintiff alleges the overcrowding has caused him
frequent headaches, dizziness, stress, and pain.

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For his First Amendment claims, plaintiff states that the overcrowding at Phelps County
Jail caused defendants to ban any opportunity for religious services. Religious services were
previously held in the gymnasium, but because of overcrowding, jail administrators repurposed
the gym into additional housing units. Plaintiff alleges this has caused him emotional distress.
Plaintiff has complained to defendants about the conditions, and states he was threatened
by defendants Lisenbe and Shults that if he continued to complain he would serve his time in the
“pink room” (i.e., a punishment cell with no mattress, bunk, or toilet).

In addition, both

defendants have verbally abused plaintiff and demeaned his race. For relief, plaintiff seeks
release from jail and monetary damages of more than $3.5 million.
Discussion
To state a claim for unconstitutional conditions of confinement under the Eighth
Amendment, an inmate must show that the alleged deprivations denied him the minimal civilized
measure of life’s necessities and that defendants were deliberately indifferent to excessive risk to
his health or safety. See Seltzer-Bey v. Delo, 66 F.3d 961, 964 (8th Cir. 1995). Overcrowding
alone does not describe a constitutional violation. See Patchette v. Nix, 952 F.2d 158, 163 (8th
Cir. 1991). Overcrowding that leads to increased danger, poor supervision, safety, medical care,
and food preparation, however, can violate the Eighth Amendment. See Cody v. Hillard, 799
F.2d 447, 450 (8th Cir. 1986), on reh’g, 830 F.2d 912 (8th Cir. 1987) (citing cases). The
conditions must “evince the ‘wanton and unnecessary infliction of pain’ necessary to constitute a
violation of the Eighth Amendment.” Cody, 830 F.2d at 914 (quoting Rhodes v. Chapman, 452
U.S. 337, 347 (1981)).
Plaintiff has not alleged that the overcrowding has led to any increased danger. He does
not allege any fights have broken out due to the overcrowding. See, e.g., Owen v. Lisenbe, No.
4:17-CV-1547 HEA (E.D. Mo. filed Sept. 27, 2017) (alleging the stress and frustration caused by

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overcrowding at Phelps County Jail has caused two fights in which plaintiff was injured by other
inmates). Plaintiff has not alleged poor supervision, safety, medical care, or food preparation.
At most, plaintiff has had to sleep on concrete twice and has spilled his tray of food twice. These
allegations do not evince the wanton and unnecessary infliction of pain necessary to violate the
Eighth Amendment.
Plaintiff’s allegations regarding his lack of recreation time, however, are more severe.
Plaintiff alleges that because the gymnasium has been converted into a housing unit, he receives
no time out of the E-Pod and no recreation. He states the pod is so full that there is no room to
move around, much less exercise. Plaintiff has alleged the lack of recreational facilities, due to
overcrowding, has deprived him of all exercise, direct sunlight, and fresh air. As a result, he
alleges he suffers frequent headaches, dizziness, stress, pain, and that his extremities are
beginning to atrophy. The Eighth Circuit has held that a prisoner confined to his cell for more
than sixteen hours a day should be allowed recreation. See Campbell v. Cauthron, 623 F.2d 503,
506-07 (1980) (“We have no trouble concluding that such crowded conditions[, inmates with as
little as eighteen square feet of living space,] constitute cruel and unusual punishment for those
convicted inmates who are kept in their cramped cells for all but a few hours each week.”).
Liberally construed, plaintiff’s constitutional claims against defendants Lisenbe and Shults
regarding the lack of recreation time are not frivolous. As a result, the Court will order the Clerk
to serve process on these defendants.
Also, plaintiff claims that the overcrowding has resulted in violations of his rights under
the Free Exercise Clause of the First Amendment. Inmates, and by extension detainees, have a
right to practice religion. See O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987). However, the
right to practice group religious worship may be restricted in some instances. Id. (inmates on
outdoor work detail need not be allowed to return to prison for religious services). A “special

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chapel or place of worship need not be provided for every faith regardless of size.” Cruz v. Beto,
405 U.S. 319, 322 n.2 (1972).
Here, plaintiff alleges merely that the Phelps County Jail’s gymnasium, a space
previously provided for worship, had been converted into housing units. He does not claim that
he is not allowed to talk to clergymen, pray, or receive religious materials. Moreover, he has not
claimed that he asked for group religious worship and that his request was denied. The First
Amendment does not create an unfettered right to practice group religious worship in prison, and
a special place of worship need not be provided. See O’Lone, 482 U.S. at 348-49; Cruz, 405
U.S. at 322 n.2. The Court finds plaintiff has not stated a plausible claim of First Amendment
violations against defendants. Thus, the Court will dismiss plaintiff’s First Amendment Free
Exercise Claims against defendants.
Plaintiff’s complaint makes no allegations against defendant Sergeant Steve Lorts.
Although his name is listed in the caption of the complaint, there are no facts alleged which
would show any constitutional violation by this defendant. The Court will dismiss without
prejudice defendant Sergeant Steve Lorts.
The Court will also dismiss plaintiff’s claims brought against both defendants Lisenbe
and Shults in their official capacities. 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 specific policy or custom of a government entity was responsible for the
alleged violations of plaintiff’s constitutional rights.

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Additionally, plaintiff has filed a motion for appointment of counsel, which the Court
will deny at this time. There is no constitutional or statutory right to appointed counsel in civil
cases.

Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984).

In

determining whether to appoint counsel, the Court considers several factors, including (1)
whether the plaintiff has presented non-frivolous allegations supporting his or her prayer for
relief; (2) whether the plaintiff will substantially benefit from the appointment of counsel; (3)
whether there is a need to further investigate and present the facts related to the plaintiff’s
allegations; and (4) whether the factual and legal issues presented by the action are complex. See
Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986); Nelson, 728 F.2d at 1005.
Plaintiff has presented non-frivolous allegations in his complaint. However, he has
demonstrated, at this point, that he can adequately present his claims to the Court. Additionally,
neither the factual nor the legal issues in this case are complex. The Court will entertain future
motions for appointment of counsel as the case progresses.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis is
GRANTED. [ECF No. 2]
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 within
twenty-one (21) 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.1

1

Prisoners must pay the full amount of the $350 filing fee. 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. The agency having custody of the prisoner
will deduct the payments and forward them to the Court each time the amount in the account
exceeds $10. 28 U.S.C. § 1915(b)(2).
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IT IS FURTHER ORDERED the Clerk of Court Clerk shall issue process or cause
process to issue upon plaintiff’s complaint on defendants Richard Lisenbe and Matt Shults in
their individual capacities.
IT IS FURTHER ORDERED that defendant Steve Lorts is DISMISSED without
prejudice.
IT IS FURTHER ORDERED that plaintiff’s official capacity claims are DISMISSED.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel is DENIED
without prejudice. [ECF No. 5]
An Order of Partial Dismissal will accompany this Memorandum and Order.
Dated this 31st day of May, 2018.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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