Allen v. Echele et al

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis (Docket No. 3 ) is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 within thirty (30) days of the date of th is 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) the statement that the remittance is fo r an original proceeding. IT IS FURTHER ORDERED that the Clerk is directed to mail to plaintiff a copy of the Courts prisoner civil rights complaint form. IT IS FURTHER ORDERED that plaintiff must file an amended complaint within thirty (30) days f rom the date of this Order. Plaintiffs failure to timely comply with this Order will result in the dismissal of this case, without prejudice and without further notice. Signed by District Judge John A. Ross on 5/17/18. (JAB)(Copy of Memorandum and Order and Prisoner Civil Rights Complaint mailed to plaintiff)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTWUAN ALLEN,
Plaintiff,
v.
DEBBIE ECHELE, et al.,
Defendants.

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No. 4:18-cv-155-JAR

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff Antwuan Allen for leave to
commence this civil action without prepayment of the required filing fee. Having reviewed the
motion and the financial information submitted in support, the Court has determined to grant the
motion, and assess an initial partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1). In addition,
for the reasons discussed below, the Court will give plaintiff the opportunity to file an amended
complaint.
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
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 sixmonth 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
$10.00, until the filing fee is fully paid. Id.
Plaintiff did not file a certified inmate account statement in support of the instant motion,
but he did file a financial affidavit form averring that he received “a little money to buy
commissary.” (Docket No. 5). Subsequently, he filed a letter stating he was unable to obtain
necessary documents to prove that his account balance was zero. The Court will therefore assess
an initial partial filing fee of $1.00, an amount that is reasonable based upon the information the
Court has about plaintiff’s finances. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997).
Any claim that plaintiff is unable to pay this amount must be supported by a copy of plaintiff’s
institution account statement.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2)(B), the Court is required to dismiss a complaint filed in
forma pauperis if it is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from such relief. An action is
frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319,
328 (1989). An action is malicious if it is undertaken for the purpose of harassing the named
defendants and not for the purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F.
Supp. 458, 461-63 (E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987). 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, 556 U.S. 662, 679
(2009). These include “legal conclusions” and “[t]hreadbare recitals of the elements of a cause
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of action [that are] supported by mere conclusory statements.” Id. at 678. Second, the Court
must determine whether the complaint states a plausible claim for relief. Id. at 679. This is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id.
The plaintiff is required to plead facts that show more than the “mere possibility of
misconduct.” Iqbal, 556 U.S. at 679. The Court must review the factual allegations in the
complaint “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. 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 680-82.
Pro se complaints are to be liberally construed, Estelle v. Gamble, 429 U.S. 97, 106
(1976), but they still must 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).

The Court must weigh all factual

allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v.
Hernandez, 504 U.S. 25, 32 (1992). Federal courts are not required to “assume facts that are not
alleged, just because an additional factual allegation would have formed a stronger complaint.”
Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004).
The Complaint
Plaintiff, an inmate at the St. Charles County Department of Corrections, filed the instant
complaint pursuant to 42 U.S.C. § 1983 against Medical Director Debbie Echele, nurses Jessica
Richard and Theresa Martin, Sargeant Baker Unknown, Sheriff Scott A. Lewis, and St. Charles
County. He states that he sues the individual defendants in an official and individual capacity.

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Plaintiff claims he has a history of stomach ulcers and bacterial infection, and that he
suffers frequent hot and cold flashes due to hypoglycemia.

Before his incarceration, he

underwent stomach surgery. He claims he “had been told, inter alia, to consume a ‘vegan’ diet to
get his health back on track.” (Docket No. 1 at 3). He states that once he began consuming a
vegan diet, his “stomach pains began to disappear.” Id. at 4.
Upon his arrival at the St. Charles County Department of Corrections, plaintiff told
“medical staff” of his dietary needs. Id. Once he was placed in a cell block, “defendants Echele,
Richard, Martin and Sargeant Baker refused to give [him] a 100% vegan diet.” Id. He claims he
“is being told he can ‘eat the regular food like everyone else,’” and that if he does not like the
food he does not have to eat it. (Docket No. 1 at 4). Plaintiff claims this means he is “left to
starve” and forced to trade his food trays for commissary items. Id. He claims he has lost
weight, and that his stomach pains are “starting to return.” Id. Plaintiff states that Echele,
Martin, and Richard all told him it is jail policy to not accommodate such diets, that Sheriff
Lewis approved of this policy, and it is the policy of St. Charles County to deny religious and
medical diet requests of inmates. He states he “brings a Monell claim” against St. Charles
County for “having a blanket policy of denying inmates’ requests for religious diets and medical
diets that are medically necessary.” Id. He states he “brings a state law civil conspiracy claim
and a civil conspiracy claim under 42 U.S.C. § 1983” against Baker, Richard, Martin and Echele
for reaching an agreement to deny plaintiff a vegan diet. (Docket No. 1 at 4). He also states he
brings claims of breach of duty and intentional infliction of emotional distress.
Discussion
As pleaded, the complaint fails to state a claim upon which relief may be granted, and is
therefore subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff does not allege

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that the diet he was given was nutritionally inadequate, only that it was not 100% vegan.
Plaintiff does state that he “had been told” to consume a vegan diet “to get his health back on
track.” Id. However, plaintiff’s statements are too vague and conclusory to permit the inference
that a vegan diet was actually medically necessary. Assuming a diet’s nutritional adequacy,
prison officials have the discretion to control its contents. Divers v. Department of Corr., 921
F.2d 191, 194 (8th Cir. 1990) (citing Burgin v. Nix, 899 F.2d 733 (8th Cir. 1990)). The Court
therefore concludes that the complaint fails to state a claim of deliberate indifference to
plaintiff’s serious medical needs.
Even if it could be said that a 100% vegan diet was medically necessary, plaintiff’s
claims would be dismissed because he has failed to allege facts showing what each named
defendant did to violate his rights. Instead, plaintiff merely listed the names of some of the
defendants and said they refused to give him a 100% vegan diet, and that he “is being told” he
must consume the same food as everyone else. “Liability 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); 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). Moreover, by merely lumping defendants
into a group and providing no factual basis to distinguish their conduct, plaintiff has failed to
give any named defendant fair notice of the grounds for the claims made against him or her.
This practice results in a pleading that fails to comply with Rule 8(a) of the Federal Rules of
Civil Procedure.

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Plaintiff also alleges, again in a vague and conclusory manner, that the county has a
policy of not accommodating religious or medical diets. This allegation fails to support any
actionable Monell claim. See Iqbal, 556 U.S. at 678 (“[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice”); Ulrich v. Pope
County, 715 F.3d 1054, 1061 (8th Cir. 2013) (affirming district court’s dismissal of a Monell
claim where the plaintiff “alleged no facts in his complaint that would demonstrate the existence
of a policy or custom” that caused the alleged deprivation of the plaintiff’s rights); see also
Spiller v. City of Texas City, Police Dept., 130 F.3d 162, 167 (5th Cir. 1997) (to plead an
actionable Monell claim “[t]he description of a policy or custom and its relationship to the
underlying constitutional violation . . . cannot be conclusory; it must contain specific facts.”).
Finally, plaintiff states that he brings a conspiracy claim against the defendants under
federal and state law, and that he brings other state law claims. However, because he provides
no factual detail permitting the inference that the defendants conspired with each other to deprive
him of his rights, he fails to state a claim for conspiracy under § 1983. See Burton v. St. Louis
Bd. of Police Com’rs., 731 F.3d 784, 798 (8th Cir. 2013) (setting forth the elements necessary to
plead a claim for conspiracy under § 1983). Moreover, because plaintiff’s federal claims would
be dismissed, the Court would also dismiss all remaining pendent state claims. See 28 U.S.C. §
1367(c)(3).
In consideration of plaintiff’s pro se status, he will be given the opportunity to submit an
amended complaint. Plaintiff is required to submit his amended complaint on a court-provided
form, and it must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Rule 8(a)
requires that a complaint contain a “short and plain” statement of the claim showing that the

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pleader is entitled to relief. Rule 10(b) requires a party to state his claims in separately numbered
paragraphs, each limited as far as practicable to a single set of circumstances.
Plaintiff must clearly identify each defendant against whom he is alleging a claim, and he
must articulate, for each defendant he names, the facts about what that defendant did to violate
his rights. Plaintiff’s failure to make specific factual allegations against any defendant will result
in that defendant’s dismissal from this case. Plaintiff should also specify whether he is suing
each defendant in his or her individual capacity, official capacity, or both.
Plaintiff shall have thirty (30) days from the date of this Memorandum and Order to file
his amended complaint. Plaintiff is warned that the filing of the amended complaint completely
replaces the original. Once plaintiff files an amended complaint, this Court will review it
pursuant to 28 U.S.C. § 1915(e). Plaintiff’s failure to timely comply with this Order will result
in the dismissal of this case, without prejudice and without further notice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
(Docket No. 3) is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 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) the statement that the remittance is for an
original proceeding.
IT IS FURTHER ORDERED that the Clerk is directed to mail to plaintiff a copy of the
Court’s prisoner civil rights complaint form.

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IT IS FURTHER ORDERED that plaintiff must file an amended complaint within
thirty (30) days from the date of this Order.
Plaintiff’s failure to timely comply with this Order will result in the dismissal of this
case, without prejudice and without further notice.
Dated this 17th day of May, 2018.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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