Armstrong v. Precythe et al

Filing 5

OPINION, MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 3] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $61.99 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, within thirty (30) 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 two blank Prisoner Civil Rights Complaint forms. Plaintiff may request additional forms as needed. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF No. 2] is DENIED at this time. IT IS FURTHER ORDERED that if plaintiff 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 Henry Edward Autrey on February 18, 2021. (MCB)(two blank Prisoner Civil Rights Complaint forms sent to plaintiff along with this Order.)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DION ARMSTRONG,
Plaintiff,
v.
ANN PRECYTHE, et al.,
Defendants.

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Case No. 4:21-cv-92-HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of self-represented plaintiff Dion
Armstrong (registration no. 12008500), an inmate at the Missouri Eastern Correctional Center, for
leave to commence this civil action without payment of the required filing fee. ECF No. 3. Having
reviewed the motion and the financial information submitted in support, the Court has determined
that plaintiff lacks sufficient funds to pay the entire filing fee and will assess an initial partial filing
fee of $61.99. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the
Court will allow plaintiff the opportunity to submit 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 or her
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 six-month
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

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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, until
the filing fee is fully paid. Id.
In support of the instant motion, plaintiff submitted a copy of his Missouri Department of
Corrections certified inmate account statement. ECF No. 4. A review of plaintiff’s account
indicates an average monthly deposit of $309.95 and an average monthly balance of $264.82.
Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an
initial partial filing fee of $61.99, which is 20 percent of plaintiff’s average monthly deposit.
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 may be granted. 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 fails to state a claim upon which relief may 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).
“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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether a complaint states a plausible
claim for relief is a context-specific task that requires the reviewing court to draw upon judicial
experience and common sense. Id. at 679. The court must assume the veracity of well-pleaded
facts but need not accept as true “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555).

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This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429
U.S. 97, 106 (1976). This means that “if the essence of an allegation is discernible,” the court
should “construe the complaint in a way that permits the layperson’s claim to be considered within
the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone
v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even self-represented complaints 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). Federal courts are not required to assume facts that are not alleged,
Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules in order to excuse
mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113
(1993).
The Complaint
On January 22, 2021, self-represented plaintiff Dion Armstrong filed the instant action on
a Prisoner Civil Rights Complaint form pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff lists
nine Missouri Department of Corrections (“MDOC”) employees as defendants: (1) Ann Precythe,
Director; (2) Diane Simmerly, Assistant Warden; (3) Richard Adams, Warden; (4) Unknown Oaks,
Correctional Officer of “5 house” or “The Hole;” (5) Sergeant Unknown Shin; (6) Unknown
Weaton, Deputy Warden; (7) Unknown Ludwick, Correctional Officer; (8) Sergeant Unknown
Nawardo; and (9) Jason Lewis, Deputy. Plaintiff brings his claims against all defendants in their
official and individual capacities.
On two pages of notebook paper, plaintiff provides his statement of the claim. Id. at 5-6.
Plaintiff alleges his due process and equal protection rights were violated on May 23, 2020 when
MDOC officials did not respond to his call after he pushed the emergency button located in his

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administratively segregated cell. Plaintiff alleges he felt dizzy because it was summer and he was
provided with no air or ice to cool him down from the heat. After he pressed the emergency button,
plaintiff alleges he fell down and hit his head on a metal door. Plaintiff describes his injuries as a
knot on his head, high blood pressure, and the inability to move his neck.
Discussion
As pleaded, the complaint fails to state a claim upon which relief can be granted against
any named defendant. Although plaintiff states that “each defendant played a huge role in ignoring
[his] need while [he] was in the hole,” he has not alleged that Precythe, Lewis, Simmerly, Adams,
Unknown Oaks, Unknown Shin, Weaton, Unknown Ludwick, or Unknown Nawardo were directly
involved in or personally responsible for specific violations of his constitutional rights. “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 Jeffers v. Gomez,
267 F.3d 895, 915 (9th Cir. 2001) (§ 1983 liability arises only upon a showing of personal
participation by defendant); 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). In order to state an actionable civil rights
claim against each defendant, plaintiff must set forth specific factual allegations showing what that
particular defendant actually did, or failed to do, that violated the plaintiff’s federally-protected
rights. See West v. Atkins, 487 U.S. 42, 48 (1988); see also Ellis v. Norris, 179 F.3d 1078, 1079
(8th Cir. 1999) (a plaintiff must plead facts showing each named defendant’s personal involvement
in the alleged constitutional wrongdoing).

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Furthermore, to any extent plaintiff is alleging that some of defendants are liable solely
because they held administrative or supervisory positions, such claims are subject to dismissal.
See Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in
§ 1983 cases). A supervisor is liable for the actions of his subordinates under § 1983 only if he
personally participates in the alleged unconstitutional conduct, or when there is a causal connection
between his actions and the alleged constitutional deprivation. See Glick v. Sargent, 696 F.2d 413,
415 (8th Cir. 1983) (warden must play a personal role in the disciplinary process; he cannot be
held liable for the outcome of the process). As stated above, plaintiff has failed to plead specific
facts establishing an actual link or connection between the named defendants and the alleged
constitutional violations.
Because plaintiff is self-represented, the Court will permit him to file an amended
complaint to attempt to cure his pleading deficiencies.
Instructions on Amending the Complaint
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. See In re Wireless Telephone Federal
Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005) (“It is well-established that an
amended complaint supersedes an original complaint and renders the original complaint without
legal effect”). Plaintiff must type or neatly print the amended complaint on the Court’s prisoner
civil rights complaint form, which will be provided to him. See E.D. Mo. L.R. 45 – 2.06(A) (“All
actions brought by self-represented plaintiffs or petitioners should be filed on Court-provided
forms”).

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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. See Fed. R. Civ. P. 10(a)
(“The title of the complaint must name all the parties”). Plaintiff must avoid naming anyone as a
defendant unless that person is directly related to his claim. Plaintiff must also specify whether
he intends to sue each defendant in his or her individual capacity, official capacity, or both.
In the “Statement of Claim” section, plaintiff should begin by writing the defendant’s
name. In separate, numbered paragraphs under that name, plaintiff should set forth a short and
plain statement of the facts that support his claim or claims against that defendant. See Fed. R.
Civ. P. 8(a). Each averment must be simple, concise, and direct. See id. Plaintiff must state his
claims in numbered paragraphs, and each paragraph should be “limited as far as practicable to a
single set of circumstances.” See Fed. R. Civ. P. 10(b). If plaintiff names a single defendant, he
may set forth as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a). If plaintiff
names more than one defendant, he 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).
It is important that plaintiff allege facts explaining how each defendant was personally
involved in or directly responsible for harming him. See Madewell, 909 F.2d at 1208. Plaintiff
must explain the role of the defendant, so that the defendant will have notice of what he or she is
accused of doing or failing to do. See Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848
(8th Cir. 2014) (stating that the essential function of a complaint “is to give the opposing party fair
notice of the nature and basis or grounds for a claim.”). Furthermore, the Court emphasizes that
the “Statement of Claim” requires more than “labels and conclusions or a formulaic recitation of

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the elements of a cause of action.” See Neubauer v. FedEx Corp., 849 F.3d 400, 404 (8th Cir.
2017). Finally, plaintiff must not try to amend a complaint by filing separate documents. Instead,
he must file a single, comprehensive pleading that sets forth his claims for relief.
Motion to Appoint Counsel
Plaintiff has filed a motion to appoint counsel. ECF No. 2. In civil cases, a self-represented
litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721
F.3d 940, 942 (8th Cir. 2013). See also Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998)
(stating that “[a] pro se litigant has no statutory or constitutional right to have counsel appointed
in a civil case”). Rather, a district court may appoint counsel in a civil case if the court is
“convinced that an indigent plaintiff has stated a non-frivolous claim . . . and where the nature of
the litigation is such that plaintiff as well as the court will benefit from the assistance of counsel.”
Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether to appoint
counsel for an indigent litigant, a court considers relevant factors such as the complexity of the
case, the ability of the self-represented litigant to investigate the facts, the existence of conflicting
testimony, and the ability of the self-represented litigant to present his or her claim. Phillips v.
Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006).
After considering these factors, the Court finds that the appointment of counsel is
unwarranted at this time. Plaintiff has yet to file a complaint that survives initial review, so it
cannot be said that he has presented non-frivolous claims. Additionally, this case appears to
involve straightforward factual and legal issues, and there is no indication that plaintiff cannot
investigate the facts and present his claims to the Court. The Court will therefore deny his motion

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without prejudice, and will entertain future motions for appointment of counsel, if appropriate, as
the case progresses.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [ECF
No. 3] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $61.99 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, within thirty (30) 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 two blank
Prisoner Civil Rights Complaint forms. Plaintiff may request additional forms as needed.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel [ECF
No. 2] is DENIED at this time.
IT IS FURTHER ORDERED that 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 18th day of February, 2021.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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