Carter v. Andrews et al

Filing 13

Order of Dismissal. Signed on 12/22/15 by District Judge Stephen R. Bough. Copy of this Order mailed to William Billy Gene Carter, Fulton State Hospital, 600 E 5th Street, Fulton, MO 65251 (Amos, Gloria)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
WILLIAM BILLY G. CARTER,
)
a/k/a WILLIAM BILLY GENE CARTER, )
)
Plaintiff,
)
)
v.
)
)
RHINNIA ANDREWS, et al.,
)
)
Defendants.
)

Case No.: 15-4116-CV-C-SRB-P

ORDER
Plaintiff is confined at the Fulton State Hospital in Fulton, Missouri, as a civillycommitted, sexually-violent predator. He has filed this case pro se, seeking relief pursuant to 42
U.S.C. § 1983 for alleged violations of his federally protected rights.
On June 8, 2015, the Court summarily dismissed Plaintiff’s complaint pursuant to §
1915(e)(2)(B)(i), as legally frivolous. Plaintiff appealed the Court’s decision. On November 16,
2015, the Eighth Circuit dismissed Plaintiff’s appeal of this Court’s ruling for a lack of
jurisdiction. The Eighth Circuit explained the Court’s Order dismissing the complaint “failed to
dispose of [Plaintiff’s allegations regarding failure-to-protect and retaliation] and thus did not
constitute a final order.” (Doc. #9, p. 2). In accordance with the Eighth Circuit’s Judgment, this
Court will address Plaintiff’s allegations regarding his failure-to-protect and retaliation claims.
For the reasons explained below, Plaintiff’s failure-to-protect and retaliation claims are
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which
relief can be granted.

I.

Legal Standard

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed in forma
pauperis if the action 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); Denton v. Hernandez, 504 U.S. 25, 31 (1992). In reviewing a pro se complaint under
§ 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines
v. Kerner, 404 U.S. 519, 520 (1972). 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, 32-33
(1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although federal courts must “view pro se
pleadings liberally, such pleadings may not be merely conclusory: the complaint must allege
facts, which if true, state a claim as a matter of law.” Martin v. Aubuchon, 623 F.2d 1282, 1286
(8th Cir. 1980). Civil rights claimants must plead facts showing the defendant’s personal
involvement in alleged constitutional wrongdoing. Ellis v. Norris, 179 F.3d 1078, 1079 (8th Cir.
1999) (upholding summary dismissal of civil rights claims, because the plaintiff’s complaint
“failed to allege sufficient personal involvement by any of the defendants to support such a
claim”).
II.

Failure to Protect

In Counts Two and 2/3, Plaintiff explains Defendants “allow convicted sex offenders to
bager [sic] plaintiff to no end, make continued threats to do plaintiff harm (including being
assaulted on 3-13-2015 by a convicted sex offender with scrap [sic] to elbow and cut to index
finger) … which defendant Andrews, Moore, Artman, Hunter, Womack, Shippley, as supervisor
allowed this to happen even though they knew [other] inmate … is a dangerous violent convicted

sex offender.” (Doc. #1, p. 6-7). Plaintiff claims Defendants are liable for violating his
constitutional rights “by allowing threats, [and] violent attacks on plaintiff.” Id. at 7.
“Prison inmates have a clearly established Eighth Amendment right to be protected from
violence by other inmates.” Curry v. Crist, 226 F.3d 974, 977 (8th Cir. 2000); See Farmer v.
Brennan, 511 U.S. 825, 833 (1994). Although the Eighth Amendment applies only to convicted
prisoners, the Fourteenth Amendment provides civilly-committed individuals and other detainees
“at least the same level of constitutional protection as the Eighth Amendment.” Nelson v.
Shuffman, 603 F.3d 439, 446 n.3 (8th Cir. 2010) (considering a sex offender treatment center
detainee’s failure-to-protect claim under the same standards applicable to a prisoner’s failure-toprotect claim). “State actors in mental health facilities owe a constitutional-level duty of care to
involuntarily held patients.” Shelton v. Ark. Dept. of Human Serv., 677 F.3d 837, 840 (8th Cir.
2012). “It is not, however, every injury suffered by one prisoner at the hands of another that
translates into constitutional liability for prison officials responsible for the victim’s safety.”
Farmer, 511 U.S. at 834. Under the Eighth Amendment, the defendants are required “to ensure
reasonable safety, a standard that incorporates due regard for [the] officials’ unenviable task of
keeping dangerous men in safe custody under humane conditions.” Id. at 844-45 (internal
citations omitted).
In order to state a failure-to-protect claim under the Eighth or the Fourteenth
Amendment, a prisoner or detainee must allege that “(1) defendants were aware of facts from
which they could infer the existence of a substantial risk of serious harm to him, (2) they actually
drew the inference, and (3) they failed to take reasonable steps to protect him.” Schofield v.
Hopkins, 491 Fed. Appx. 772, 774 (8th Cir. 2012); See also Farmer v. Brennan, 511 U.S. 825,
836–38 (1994). A “plaintiff must show something more than mere inadvertence or negligence.”

Branchcomb v. Brewer, 669 F.2d 1297, 1298 (8th Cir. 1982) (per curiam). “A failure-to-protect
claim has an objective component, whether there was a substantial risk of harm to the inmate,
and a subjective component, whether the prison official was deliberately indifferent to that risk.”
Curry, 226 F.3d at 977. Deliberate indifference exists if “the official knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware and he must also draw
the inference.” Taylor v. Dormire, 07-4212-CV-C-SOW, 2008 WL 5071135, at *1 (W.D. Mo.
Nov. 24, 2008) (quoting Farmer v. Brennan, 511 U.S. 828, 843 (1970)).
Here, Plaintiff identified an incident that occurred on March 13, 2015, where he
described being assaulted by a convicted sex offender that resulted in a scrape on his elbow and a
cut on his index finger. Plaintiff states Defendants “Andrews, Moore, Artman, Hunter, Womack,
[and] Shippley, as supervisor allowed this to happen even though they knew inmate … is a
dangerous violent convicted sex offender.” (Doc. #1, p. 6-7). The only alleged facts upon which
Plaintiff states Defendants should have inferred a substantial risk of harm to him is the general
nature of the inmate’s convictions and not any fact specific to Plaintiff. “But [officials] are not
required to segregate indefinitely all inmates whose original crimes suggest they might be
capable of further violence.” Curry, 226 F.3d at 978. Plaintiff also claims Defendants allowed
him to be threatened and badgered by convicted sex offenders. Id. at p. 6. Plaintiff has not
provided any other facts pertaining to the circumstances of the alleged assault and threats or what
actions were taken in response to the alleged assault and threats. Even though Plaintiff alleges
Defendants “allowed” threats to be made against him, “threats between inmates are common and
do not, under all circumstances, serve to impute actual knowledge of a substantial risk of harm.”
Prater v. Dahm, 89 F.3d 538, 541 (8th Cir. 1996). “[P]rison officials who actually knew of a
substantial risk to inmate health or safety may be found free from liability if they responded

reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844.
Pleading sufficient facts regarding what actions were taken by Defendants, as well as actions
taken by Plaintiff are essential to stating a claim. An “official’s duty under the Eighth
Amendment is to ensure ‘reasonable safety,’” and without additional facts, Plaintiff has failed to
properly plead the first and second elements of his claim. Id. (quoting Helling v. McKinney, 509
U.S. 25, 33 (1993)).
Even if Plaintiff had sufficiently pleaded that “[D]efendants were aware of facts from
which they could infer the existence of a substantial risk of serious harm to [Plaintiff],” he has
failed to show that Defendants were deliberately indifferent to that risk. Schofield, 491 Fed.
Appx. at 774. “Whether one puts it in terms of duty or deliberate indifference, prison officials
who act reasonably cannot be found liable[.]” Farmer, 511 U.S. at 845. Assuming all facts as
true, the Court is still unable to conclude whether Defendants acted unreasonably and were
deliberately indifferent to any risk to Plaintiff. Plaintiff has failed to plead facts relating to the
conduct of the Defendants that would help to establish the level of subjective knowledge
required for a violation of Plaintiff’s constitutional rights.
Accordingly, the Court finds Plaintiff has failed to allege facts which, taken as true,
demonstrate Defendants failed to meet the “reasonable safety” standard and establish a violation
of his clearly recognized constitutional rights. Therefore, Plaintiff’s failure-to-protect claims
against Defendants are dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a
claim upon which relief can be granted.
Additionally, it appears Plaintiff may have attempted to assert a failure-to-protect claim
against Defendant Shippley based on his supervisory status. (Doc. #1, p. 6). Plaintiff, however,
has failed to allege any personal involvement of Defendant Shippley other than conclusory

statements that Defendants have violated his constitutional rights by allowing threats by other
detainees and an assault. See Ellis, 179 F.3d at 1079. Therefore, if Plaintiff contends Defendant
Shippley is involved in the denial of his federally protected rights due to his supervisory role, he
is attempting to state a claim against Defendant Shippley under a theory of respondeat superior,
which is not an actionable claim under Section 1983. See Frentzel v. Boyer, 297 Fed. Appx. 576,
577 (8th Cir. 2008) (“the doctrine of respondeat superior does not apply under section 1983”).
Therefore, in the event that Plaintiff has attempted to assert a failure-to-protect claim against
Defendant Shippley based solely on his supervisory role, Plaintiff’s claim is dismissed.
III.

Retaliation

In Counts One, Four and Five, Plaintiff asserts allegations that Defendants have retaliated
against him. Specifically, Plaintiff states Defendants Andrews, Moore, Artman, Hunter and
Kegley produced false records “stating that he has a nicotine dependence, alcohol abuse, [and]
delusional disorder.” (Doc. #1, p. 7). Plaintiff claims Defendants “are not truthful in [their]
dealings with this citizen, have attacked this citizen … in the past for unjustified reasons,
SORTS staff provoke this citizen for filing civil rights lawsuits against them, encourage other
residents to make false claims against this citizen…” Id. at 9-10. Plaintiff claims Defendants “are
(1) friends with [their] co-workers, [and] (2) show certain resident(s) favoritism.” Id. at 10.
Plaintiff concludes “Dr. Hunter and his colleagues are in fact retaliating.” Id.
“To establish a First Amendment retaliation claim under 42 U.S.C. § 1983, the plaintiff
must show (1) he engaged in a protected activity, (2) the government official took adverse action
against him that would chill a person of ordinary firmness from continuing in the activity, and
(3) the adverse action was motivated at least in part by the exercise of the protected activity.”
Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004) (quoting Naucke v. City of Park Hills, 284

F.3d 923, 927–28 (8th Cir. 2002)); see also L.L. Nelson Enters., Inc. v. Cnty. of St. Louis, Mo.,
673 F.3d 799, 807–08 (8th Cir. 2012). “In the prison context, we have observed that prison
officials are prohibited from ‘punish[ing] an inmate because he exercises his constitutional right
of access to the courts.’” Beaulieu v. Ludeman, 690 F.3d 1017, 1025 (8th Cir. 2012) (quoting
Sisneros v. Nix, 95 F.3d 749, 751 (8th Cir. 1996)).
First, Plaintiff must plausibly plead that he engaged in a protected activity. Plaintiff
alleges he has filed “previous meritable [sic] claims in Federal Court system in Missouri.” (Doc.
#1, p. 5). As civilly-committed persons retain their First Amendment rights to exercise the
freedom of speech and to seek redress of grievances within the court, Plaintiff’s use of the court
system constitutes a protected activity. See Revels, 382 F.3d at 876.
As to the second and third elements, Plaintiff must plead facts demonstrating Defendants
took “adverse action against him that would chill a person of ordinary firmness from continuing
in the activity and the adverse action was motivated at least in part by the exercise of the
protected activity.” Id. Plaintiff concludes Defendants retaliated against him because he has filed
civil rights claims against them. (Doc. #1, p. 5, 10). Plaintiff fails to allege anything more than
conclusory statements that Defendants have produced false records, attacked Plaintiff and
encouraged other people within the facility to make false claims against him. Id. at p. 7, 9-10.
Plaintiff alleges no specific facts to suggest that the identified adverse actions were at all
motivated by a protected activity. Plaintiff merely identified his protected activity (his filing of
“civil rights lawsuits against [Defendants]”), and provides conclusory allegations that
Defendants took action against Plaintiff as a result. Id. at p.10. Even assuming Plaintiff has
sufficiently pleaded engagement in a protected activity and adverse action taken against him,

Plaintiff fails to plead any facts that would plausibly tend to suggest any causal connection
between the two.
As a result of Plaintiff’s purely conclusory allegations of causation, Plaintiff fails to
allege any First Amendment retaliation violation. Accordingly, Plaintiff’s retaliation claims
against Defendants are dismissed.
IV.

Conclusion

Therefore, this Court concludes that Plaintiff has failed to assert an actionable claim
against Defendants for failure-to-protect and retaliation. Accordingly, it is hereby
ORDERED that this case is DISMISSED, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for
failure to state a claim upon which relief can be granted; and
ORDERED that Plaintiff’s Motions for Appointment of Counsel (Docs. ##10, 11) are
DENIED as moot.

/s/ Stephen R. Bough
STEPHEN R. BOUGH, JUDGE
UNITED STATES DISTRICT COURT
DATE: December 22, 2015