Harris v. Phelps County Jail

Filing 33

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this case is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2). A separate order of dismissal will be entered herewith. IT IS F URTHER ORDERED that plaintiff's motion for reconsideration of appointment of counsel [ECF No. 28 ] is DENIED as moot. IT IS FURTHER ORDERED that plaintiff's motion for "Demandant of Real Action and Transitory Action" [ECF No. 32 ] is DENIED as moot. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge Ronnie L. White on March 31, 2021. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTHONY M. HARRIS,
Plaintiff,
vs.
PHELPS COUNTY JAIL, et al.,
Defendants.

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Case No. 4:20-CV-800 NCC

MEMORANDUM AND ORDER
This matter is before the Court upon multiple filings by self-represented plaintiff Anthony
Harris. On October 28, 2020, the Court directed plaintiff to file a third amended complaint,
clarifying the relief sought in this matter. ECF No. 24. On November 18, 2020, the Court granted
plaintiff a three-month extension on the deadline for filing the amended pleading. ECF No. 26.
Since that extension, plaintiff has filed a Motion for Reconsideration of Appointment of Counsel
(ECF No. 28), a "Memorandum oflntent" (ECF No. 29), a Third Amended Complaint (ECF No.
30), and a "Motion Pro Se For demandant of Real Action And transitory Action" (ECF No. 32). 1
Plaintiff has been given multiple opportunities to amend his pleadings in order to state a
valid 42 U.S.C. § 1983 claim in this case. After review of plaintiffs Third Amended Complaint
under 28 U.S.C. § 1915(e)(2), and in consideration of the record for plaintiffs pending criminal
matter in the United States District Court for the Western District of Missouri, the Court finds that
this case is subject to dismissal for failure to state a claim upon which relief may be granted.

1

Plaintiff also filed a Certified Inmate Account Statement showing a balance of $0.00 and an amount owed of
$127.71, as of November 10, 2020. ECF No. 27 at 1. The Court will not discuss this filing as it does not change the
Court's previous Order of June 22, 2020, which granted plaintiff informa pauperis status, waived the initial partial
filing fee, and directed the institution having custody of plaintiff to send monthly payments towards the filing fee
when the amount in plaintiffs account exceeds $10.00. See ECF No. 6.

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed informa

pauperis if it is frivolous, is malicious, fails to state a claim upon which relief can be granted, or
seeks monetary relief against a defendant who is immune from such relief. 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 filed by a self-represented person under 28 U.S.C. § 1915,
the Court accepts the well-plead facts as true, White v. Clark, 750 F.2d 721, 722 (8th Cir. 1984),
and liberally construes the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v.

Kerner, 404 U.S. 519, 520 (1972). A "liberal construction" means that if the essence of an
allegation is discernible, the district court should construe the plaintiffs complaint in a way that
permits his or her claim to be considered within the proper legal framework. Solomon v. Petray,
795 F.3d 777, 787 (8th Cir. 2015). However, even self-represented complainants are required to
allege facts which, if true, state a claim for relief as a matter oflaw. 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) (refusing
to supply additional facts or to construct a legal theory for the self-represented plaintiff that
assumed facts that had not been pleaded).

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Background

I.

Instant Case
Self-represented plaintiff Anthony M. Harris is a pretrial detainee currently confined at the

Phelps County Jail. On June 1, 2020, plaintiff initiated this suit by filing a 42 U.S.C. § 1983 form
complaint in the United States District Court for the Western District of Missouri. ECF No. 1. On
June 18, 2020, the case was transferred to this Court. See ECF Nos. 4-5. In the 'Statement of
claim' section of the complaint, plaintiff wrote only: "on kiosk." Id. at 3. In its June 22, 2020
Order, the Court explained that it does not have access to the details of grievances filed by plaintiff
on the County Jail kiosk system. ECF No. 6. As a result, the Court directed plaintiff to file an
amended complaint containing all the factual allegations that plaintiff wanted the Court to
consider.
After that Order, plaintiff filed with this Court three letters, a "Memorandum and Order,"
a motion for appointment of counsel, an Amended Complaint, and multiple requests for an update
on the status of his case. ECF Nos. 8-9, 11-15. Plaintiff brought his Amended Complaint under
42 U.S.C. § 1983 against three defendants: (1) Sergeant Lortis, 2 (2) Nurse Kelley, and (3) Phelps
County Jail. ECF No. 12 at 1-3. The Court reviewed plaintiffs Amended Complaint and other
filings in its September 9, 2020 Order. ECF No. 18. The Court found that plaintiff had not
adequately alleged claims to withstand review under 28 U.S.C. § 1915(e)(2). However, because
plaintiff is self-represented and the allegations are serious, the Court directed plaintiff to file a
second amended complaint to clarify his claims and the named defendants in this matter. The

2

The Court notes that plaintiff fluctuates between two different spellings for the last name of one of the defendants:
"Lorts" and "Lortis." See ECF Nos. 11 at 3, 12 at I, 20 at 2, 30 at 11. In this Order, the Court will use the spelling
from plaintiffs Third Amended Complaint: "Lortis." See ECF No. 30.

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Court also denied plaintiffs motion for appointment of counsel.

Plaintiff filed his Second

Amended Complaint on September 21, 2020. ECF No. 20.
Plaintiffs Second Amended Complaint was brought under 42 U.S.C. § 1983 against only
two defendants in their individual capacities: Sergeant Lortis and Nurse Kelley. ECF No. 20 at 23. Upon review of the complaint, the Court found that plaintiff was only seeking the relief of
release from confinement - a relief that is not cognizable in a § 1983 action. As such, the Court
directed plaintiff to file a Third Amended Complaint, clarifying the relief sought in this matter.
ECFNo. 24. Plaintiff filed a Third Amended Complaint on February 26, 2021. ECF No. 30.

II.

Plaintiffs Pending Criminal Matter in the Western District
As of the date of this Order, there are criminal charges pending against plaintiff in the

United States District Court for the Western District of Missouri. United States v. Harris, No.
2:19-CR-4088-BCW (W.D. Mo. Nov. 13,2019). 3 On November 13, 2019, the criminal indictment
in that matter was returned, charging plaintiff with: (1) possession with intent to distribute
methamphetamine and (2) possession of a firearm in furtherance of a drug trafficking crime. Id.
at ECF No. 1. According to the indictment, the actions giving rise to the charges occurred in
Camden County, Missouri. Id. The case is currently on the May 3, 2021, joint criminal trial
docket. Id. at ECF No. 162.
According to the docket sheet for plaintiffs criminal matter, plaintiff has filed multiple pro

se motions with that Court concerning the medical care he has been receiving at the Phelps County
Jail. Recently, on March 12, 2021, the Western District Court denied plaintiffs motion for
adequate medical care (ECF No. 155) after hearing testimony on the subject at a March 9, 2021,
hearing. The Court stated in its denial:

3

The Court may take judicial notice of judicial opinions and public records. Stutzka v. McCarville, 420 F.3d 757,
760 n. 2 (8th Cir. 2005).

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At the hearing held on March 9, 2021, Deputy U.S. Marshal Erik Zumdome
testified that Mr. Harris recently underwent laser eye surgery for his left eye and
his ophthalmologist was keeping watch on his right eye but considered it nonurgent. (Tr. 5:4-14). Progress notes had indicated a retinal detachment of the left
eye with single retinal tear, glaucoma of both eyes, lattice degeneration of left
retina, and nuclear sclerosis bilateral. (Tr. 16: 15-18). The ophthalmologist advised
he would recheck the right eye at the six-month follow-up for the left eye. (Tr.
6:5-22). On February 4, 2021, the U.S. Marshals Service Medical Management
Branch consulted with the ophthalmologist, at which time the ophthalmologist
reiterated that the right eye condition was non-urgent. (Tr. 6:23-7:9). Based on
this testimony, the Court finds that the government has not exhibited deliberate
indifference to a serious medical need, as Mr. Harris has received adequate
treatment for, and attention to, his right eye.

Id. at ECF No. 167.
Filings Currently Before the Court
I.

Memorandum of Intent
On January 29, 2021, plaintiff filed a document titled "Memorandum oflntent" in which

he makes brief arguments alleging deliberately indifferent medical care concerning his eyes,
asserting that he has standing to bring a class action lawsuit regarding Camdenton County
Missouri's failure to provide prompt probable cause hearings, and again requesting appointment
of counsel in this matter. ECF No. 29 at 1-2. As for his medical care allegations, plaintiff states
that he was diagnosed with Glaucoma in November 2020 and taken to an "eye client" who told
him that he needed glasses. Id. at 1. As of January 22, 2021, plaintiff states that he still does not
have glasses and that the delay in treatment constitutes a constitutional deprivation. Id.

II.

Third Amended Complaint
About a month later, on February 26, 2021, the Court received plaintiffs Third Amended

Complaint on the required court-provided form. ECF No. 30. In his Third Amended Complaint
brought under 42 U.S.C. § 1983, plaintiff names nine defendants: (1) Timothy A. Garrison (United
States Attorney); (2) Nick Thomas (Camdenton Police Officer); (3) Lt. Beauchamp (Camdenton
Police Lieutenant); (4) City of Camdenton, Missouri; (5) B.A. Pratt (Narcotics Investigator with

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the Lake Area Narcotics Enforcement Group); (6) Dr. Douglas G. Wilson (Lake Regional Health
System); (7) Sergeant Lortis (Phelps County Jail); (8) Nurse Kelley (Phelps County Jail Medical
Staff); and (9) City of Rolla, Missouri. ECF No. 30 at 2-3, 11. Plaintiff names Dr. Wilson and
Sergeant Lortis in both their individual and official capacities, but he names all other defendants
in their official capacities only. Id. at 2-3, 11-12.
Although not specifically stated by plaintiff, his allegations against the first six defendants
seem to be related to his arrest and indictment in his pending criminal case. As for defendant
Garrison, plaintiff alleges that he "filed a grand jury indictment without probable cause
determination first and filed it 18 days late," causing plaintiff to suffer prolonged detention and
loss of property. ECF No. 1 at 3. As for defendant police officer Thomas, plaintiff asserts that
Thomas "made false statement which caused[] a call for help to tum into drugs and weapon
charges" and resulted in plaintiff suffering a "loss of liberty[], life, and property[]." Id. As for
defendant police lieutenant Beauchamp, plaintiff states that he was the highest ranking officer "on
the scene" and that he "should have been able to identify [that] plaintiff was under the influence
and should have known to seal the room and wait on warrant." Id. As for the City of Camdenton,
plaintiff alleges that it failed to train the employees of its police department "on how to approach
a person under the influence." Id. at 12. As for defendant B.A. Pratt, 4 plaintiff asserts that Pratt
"wrote or [applied] for a search warrant using hearsay and tainted evidence" and that he "omitted
critical evidence in the search warrant application," resulting in a faulty grand jury indictment. Id.
Finally, according to plaintiff, he was taken to the Lake Regional Emergency Room for a possible

4

Plaintiff describes B.A. Pratt as a "Narcotics Investigator with the Lake Area Narcotics Enforcement Group." ECF
No. 30 at 11. According to the Camden County Sheriff Office's website, the Lake Area Narcotics Enforcement
Group is a "multi-jurisdictional drug task force which serves Camden, Crawford, Gasconade, Laclede, Maries, and
Osage Counties ... [The Group] employs five (5) Task Force Officers and is coordinated by the Missouri State
Highway Patrol ... [The Group] focuses their efforts on drug enforcement by conducting both covert and overt
narcotics investigations in the counties and cities they serve." Press Release: 4/11/2017 - Lake Area Narcotics
Enforcement Group, Camden County Sheriff's Office, https://www.camdencountymosheriff.org/press_ view.php?
id=562.

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drug overdose or involuntary intoxication evaluation but Dr. Douglas Wilson only ordered a blood
pressure check when he was "suppose to check for intoxication not mental problem." Id
Again, although not stated specifically by plaintiff, it seems that plaintiff was taken to the
Phelps County Jail after his arrest and visit to the emergency room. Once there, plaintiff alleges
that another inmate lied and said that plaintiff was "talking bad to them" and as a result, Sergeant
Lortis "teaser the plaintiff twice to make him seat in the restrain chair." Id As for defendant
Nurse Kelley, plaintiff alleges that she has been deliberately indifferent to his serious medical need
and that she has failed "to see to the care of Plaintiff[' s] cry for help." Id at 13. Plaintiff states
that he was diagnosed with Glaucoma in November 2020 and that he has had to go weeks without
pain medication. He also states that he was told in November that he needed glasses to correct
vision problems, but that as of March, he still had not received them. Id Finally, plaintiff alleges
that Phelps County Jail is within the boundaries of the City of Rolla and that the City "should see
to the jail employee training.'' Id
As for injuries, plaintiff states: "The injuries I sustained in the last 18 months of my
unlawful arrest and detention is all mental." Id For relief, plaintiff wants "a black attorney" and
he implies that he would like money damages but he does not "know how much money to ask for."

Id
Discussion
Plaintiffs Amended and Second Amended Complaints attempted to assert claims of
excessive force and deliberately indifferent medical care. The Court provided plaintiff with
guidance on how to state valid claims for relief and gave plaintiff multiple opportunities to amend
his pleadings. Plaintiff seems to have ignored all the Court's guidance in his Third Amended
Complaint which alleges various unrelated claims, against many defendants, without factual
support. Liberally construing plaintiffs allegations, the Court finds that the Third Amended

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Complaint fails to state a claim upon which relief may be granted. For the reasons discussed
below, the Court will dismiss this case under 28 U.S.C. § 1915(e)(2)(B).
Plaintiff alleges defendant United States Attorney Timothy Garrison filed a grand jury
indictment against him, without a probable cause determination. According to the docket sheet in
plaintiffs pending criminal matter, the indictment was filed by Special Assistant United States
Attorney Aaron M. Jolly after a grand jury found grounds for indictment. US. v. Harris, No. 2:19CR-4088-BCW, ECF No. 1. As such, the docket sheet in plaintiffs criminal matter contradicts
plaintiffs assertions that Garrison filed plaintiffs criminal indictment and that a grand jury had
not made a probable cause determination. In addition to this lack of factual support, plaintiffs
claims against Garrison are barred by absolute immunity. Absolute immunity protects prosecutors
against claims arising from their initiation of a prosecution and presenting a criminal case, even
when vindictive prosecution is alleged.

Imbler v. Pachtman, 424 U.S. 409, 427-31 (1976)

(prosecutors are absolutely immune from § 1983 claims for damages when civil rights violations
are alleged based on actions taken by prosecutor while initiating and pursuing a criminal
prosecution); Brodnicki v. City of Omaha, 75 F.3d 1261, 1266 (8th Cir. 1996); Myers v. Morris,
810 F.2d 1437, 1446 (8th Cir. 1987) (abrogated on other grounds). Plaintiffs claims against U.S.
Attorney Timothy A. Garrison are subject to dismissal for failure to state a claim and barred by
immunity.
Plaintiffs allegations against the officers who participated in his arrest and detention defendants Thomas, Beauchamp, and Pratt - fail to state an actionable claim under the Prison
Litigation Reform Act ("PLRA") for compensatory damages. Plaintiff admits that his injuries
related to his claims regarding unlawful arrest and detention are all "mental." ECF No. 30 at 13.
The PLRA states: "No Federal civil action may be brought by a prisoner confined in a jail, prison,
or other correctional facility, for mental or emotional injury suffered while in custody without a

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prior showing of physical injury or the commission of a sexual act." 42 U.S.C. § 1997e(e); see
also McAdoo v. Martin, 899 F.3d 521, 525 (8th Cir. 2018) ("We interpret the PLRA to require
more than a de minimis physical injury."). Plaintiff has claimed no physical injury arising out of
the alleged violations of his constitutional rights regarding his arrest and detention. He admits his
injuries are mental and he seeks money damages. Plaintiffs claims against defendants Nick
Thomas, Lt. Beauchamp, and B.A. Pratt fail to state a claim for compensatory damages under the
PLRA and will be dismissed.
Plaintiff claims the cities of Camdenton and Rolla failed to train their employees. A
governmental entity like a city can be sued directly under § 1983. See Monell v. Dep 't of Soc.
Servs. of City of New York, 436 U.S. 658,690 (1978). Liability under§ 1983 may attach if the
constitutional violation resulted from (1) an official policy, (2) an unofficial custom, or (3) a
deliberately indifferent failure to train or supervise. Mickv. Raines, 883 F.3d 1075, 1079 (8th Cir.
2018).
As to Camdenton, plaintiff alleges a failure to train "on how to approach a person under
the influence." ECF No. 30 at 12. As to Rolla, plaintiff alleges the city should "see to the Jail
Employee training." Id at 13. These assertions are insufficient to support a failure to train claim
against either city defendant. Plaintiff does not plead any facts from which one could begin to
draw an inference of a deliberately indifferent failure to train. Without a factual underpinning,
plaintiffs allegations amount to legal conclusions, which are not entitled to the presumption of
truth. See Wiles v. Capitol Indem. Corp., 280 F.3d 868, 870 (8th Cir. 2002) (stating that while
"court must accept allegations of fact as true ...the court is free to ignore legal conclusions,
unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form
of factual allegations."). In addition, plaintiff does not assert that he suffered any injury as a result

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of a failure to train. Plaintiff provides no factual support for his failure to train allegations and as
such, plaintiff's claims against the cities of Camdenton and Rolla fail to state a claim for relief.
Plaintiffs claims against defendants Dr. Wilson and Nurse Kelley relate to medical care.
Plaintiff alleges Dr. Wilson provided inappropriate care when plaintiff was taken to Lake Regional
Emergency Room and Dr. Wilson ordered a blood pressure check when plaintiff asserts that he
should have checked for intoxication. ECF No. 30 at 12. Plaintiff does not allege any injury
resulting from Dr. Wilson's medical care. Regardless, plaintiffs § 1983 claims against Dr. Wilson
fail because Dr. Wilson is a not a state actor.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which was designed to provide a
"broad remedy for violations of federally protected civil rights." Monell v. Dep 't ofSoc. Servs,
436 U.S. 658, 685 (1978). The essential elements of a constitutional claim under § 1983 are that
the defendant acted under color of state law, and that the alleged wrongful conduct deprived the
plaintiff of a constitutionally protected federal right. Schmidt v. City of Bella Villa, 557 F.3d
564,571 (8th Cir. 2009). To that end, only state actors can be held liable under§ 1983. Carlson
v. Roetzel & Andress, 552 F.3d 648,650 (8th Cir. 2008); see also Sanders v. Sears, Roebuck &
Co., 984 F.2d 972,975 (8th Cir. 1993) (citing Jackson v. Metro. Edison Co., 419 U.S. 345,349
(1974)) (stating that§ 1983 secures constitutional rights from government infringement, not
infringement by private parties).
Dr. Wilson, described by plaintiff as an employee of an emergency room, is a private
party and not a state actor. As a result, he is not suable under § 1983 unless he is a "willful
participant in joint activity with the State or its agents." Gibson v. Regions Fin. Corp., 557 F .3d
842, 846 (8th Cir. 2009) (internal citation omitted). Plaintiff does not allege any conspiracy
between Dr. Wilson and any state actor, and the facts asserted do not support such a claim.

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Plaintiffs allegations against Dr. Douglas G. Wilson fail to state a claim under 42 U.S.C. § 1983
and must be dismissed.
As to defendant Nurse Kelley, plaintiff alleges that he has had to go weeks at Phelps County
Jail without pain medication for his Glaucoma, and that he has not received his needed glasses to
correct his vision. ECF No. 30 at 13. However, there are no factual allegations connecting Nurse
Kelley to plaintiffs denied pain medication or lack of glasses. Plaintiff does not state that he ever
requested these items from Kelley and was denied.

In addition, plaintiff states in his

"Memorandum of Intent" that he was diagnosed with Glaucoma and prescribed glasses by an
outside medical provider - not Nurse Kelley. ECF No. 29 at 1. "Liability under § 1983 requires
a causal link to, and direct responsibility for, the deprivation ofrights." Madewell v. Roberts, 909
F.2d 1203, 1208 (8th Cir. 1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985)
(to be cognizable under§ 1983, a claim must allege that the defendant was personally involved in
or directly responsible for the incidents that deprived the plaintiff of his constitutional rights).
Plaintiff fails to present any facts supporting an allegation that Nurse Kelley is directly responsible
to plaintiffs lack of pain medication or glasses.
Even if plaintiff had alleged an involvement by Nurse Kelley in the denial of these aspects
of his medical care, the facts asserted do not support a claim of deliberately indifferent medical
care. A jail official's intentional denial of or delayed access to medical care for a prisoner's serious
injury constitutes unnecessary and wanton infliction of pain and gives rise to a claim of deliberate
indifference to that prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05
(1976). To prevail on an Eighth Amendment claim of deliberate indifference, a plaintiff must
prove that he suffered from an objectively serious medical need, and that prison officials actually
knew of and deliberately disregarded that need. Roberts v. Kopel, 917 F.3d 1039, 1042 (8th Cir.
2019). To prevail under this standard, an inmate must demonstrate that a prison health care

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provider's actions were "so inappropriate as to evidence intentional maltreatment or a refusal to
provide essential care." Jackson v. Buckman, 756 F.3d 1060, 1066 (8th Cir. 2014). As such,
"deliberate indifference requires a highly culpable state of mind approaching actual intent."
Kulkay v. Roy, 847 F.3d 637,643 (8th Cir. 2017).

Based on plaintiffs own statements and the findings of the Western District Court on
plaintiffs medical care, there is no evidence of a deliberate disregard as to plaintiffs medical care
for his eye problems.

Plaintiffs has received treatment and evaluation by an outside

ophthalmologist and he has had eye surgery to correct some eye problems. Allegations of delay
in receipt of medication or glasses, with no assertion of intentional maltreatment or refusal to
provide care, are insufficient to support a claim of deliberate indifference. Again, it is not enough
for plaintiff to assert legal conclusions without factual support. See Wiles, 280 F.3d at 870.
Plaintiff fails to state a claim of deliberately indifferent medical care against defendant Nurse
Kelley.
Finally, as to defendant Sergeant Lortis, plaintiff seems to allege that Lortis tasered him
twice in order to get plaintiff to sit down in a restraint chair. The Due Process Clause of the
Fourteenth Amendment protects pretrial detainees from "the use of excessive force that amounts
to punishment." Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (citing Graham v. Connor,
490 U.S. 386, 395 n.10 (1989)). In order to prevail on an excessive force claim, plaintiff must
show that a defendant purposely or knowingly used objectively unreasonable force. Id. "Whether
the application of force is unreasonable turns on the facts and circumstances of each particular
case." Ryan v. Armstrong, 850 F .3d 419, 427 (8th Cir. 2017) (internal quotations and citations
omitted). "Factors relevant to assessing the objective reasonableness of force used by officers
include: the relationship between the need for the use of force and the amount of force used; the
extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of

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force; the severity of the security problem at issue; the threat reasonably perceived by the officer;
and whether the plaintiff was actively resisting." Id. (citing Kingsley, 135 S. Ct. at 2473).
Here, plaintiffs allegations are insufficient to suggest that the force used by Lortis was
objectively unreasonable. Plaintiff disagreed with something said to Lortis by another inmate and
Lortis used the taser to "make him" sit in the chair. Plaintiff does not allege that he suffered any
injury as a result of the tasering. "[Correctional] Officers may reasonably use force in a good-faith
effort to maintain or restore discipline but may not apply force maliciously and sadistically to cause
harm." Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir. 2006) (quoting Hudson v. McMillian,
503 U.S. 1, 7 (1992)) (internal quotation marks omitted). Plaintiffs allegations are insufficient to
infer that Lortis used the taser to cause harm maliciously and sadistically. The allegations suggest
that the taser was used to enforce compliance with an order to sit in the chair. Plaintiffs Third
Amended Complaint fails to state a claim against defendant Sergeant Lortis.
For all of the reasons discussed above, this case does not survive review under 28 U.S.C.
§ 1915(e)(2)(B)(ii) and must be dismissed for failure to state a claim upon which relief may be
granted. The Court finds that it would be futile to allow plaintiff to amend his pleadings, as the
Court has already given plaintiff this opportunity multiple times.
Accordingly,
IT IS HEREBY ORDERED that this case is DISMISSED without prejudice for failure

to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2). A separate order
of dismissal will be entered herewith.
IT IS FURTHER ORDERED that plaintiffs motion for reconsideration of appointment

of counsel [ECF No. 28] is DENIED as moot.
IT IS FURTHER ORDERED that plaintiffs motion for "Demandant of Real Action

and Transitory Action" [ECF No. 32] is DENIED as moot.

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IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.

:s

V

Dated this~

f

day of March, 2021.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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