Walton v. Myers et al
MEMORANDUM AND ORDER - Plaintiff shall have 30 days to file an amended complaint in accordance with this Memorandum and Order. Failure to file an amended complaint within the time specified by the court will result in the court dismissing this cas e without further notice to Plaintiff. ***Pro Se Case Management Deadlines: Pro Se Case Management Deadline set for 2/5/2021: amended complaint due. Plaintiff's 17 MOTION to Appoint Counsel is denied without prejudice to reassertion. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MKR)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN K. WALTON,
MICHEAL MYERS, Director; WEST,
Captain; SULLIVAN, Lt; MOSS, Sgt;
GILLISPIE; and PENAHERRARA,
Plaintiff, John K. Walton (“Walton”), was a pretrial detainee confined at the
Douglas County Correctional Center (“DCCC”) in Omaha, Nebraska, when he filed
his pro se Complaint (Filing 1) on June 11, 2020. Although Walton has since been
released from jail, his Complaint remains subject to initial review under 28 U.S.C. §
1915A for a determination of whether summary dismissal is appropriate. See Mister
v. Obadina, No. 19-CV-00148-NJR, 2019 WL 1978343, at *1 n. 2 (S.D. Ill. May 3,
2019) (“A Section 1915A review is triggered when the plaintiff is a prisoner at the
time of filing the complaint, whether or not the plaintiff is subsequently released
from prison.”) (citing Jaros v. Ill. Dep't of Corr., 684 F.3d 667, 669 n.1 (7th Cir.
2012)). Walton has also been granted leave to proceed in forma pauperis (“IFP”),
first as a prisoner on June 18, 2020 (see Filing 7), and then as a non-prisoner on
December 16, 2020 (see Filing 20), so his Complaint is subject to initial review
under 28 U.S.C. § 1915(e)(2), as well.
I. LEGAL STANDARDS ON INITIAL REVIEW
The Prison Litigation Reform Act (“PLRA”) requires the court to conduct an
initial review of “a complaint in a civil action in which a prisoner seeks redress from
a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. §
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1915A(a). On such initial review, the court must “dismiss the complaint, or any
portion of the complaint,” it determines “(1) is frivolous, malicious, or fails to state
a claim upon which relief may be granted; or (2) seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). Comparable
language is contained in 28 U.S.C. § 1915(e)(2)(B) (applicable to IFP plaintiffs).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins
v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). Plaintiffs must set forth enough
factual allegations to “nudge[ ] their claims across the line from conceivable to
plausible,” or “their complaint must be dismissed.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 569-70, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“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
“A pro se complaint must be liberally construed, and pro se litigants are held
to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal
quotation marks and citations omitted). This means that “if the essence of an
allegation is discernible, even though it is not pleaded with legal nicety, then the
district court should construe the complaint in a way that permits the layperson’s
claim to be considered within the proper legal framework.” Stone v. Harry, 364 F.3d
912, 915 (8th Cir. 2004). However, even pro se complaints are required to 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).
II. SUMMARY OF COMPLAINT
Walton indicates this is a civil rights action brought under 42 U.S.C. § 1983
and alleges the defendants violated his “right to be personal in front of staff in order
to ask them what I need and not get assaulted for being frank with officers.” (Filing
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1 at 3.) Although Walton claims his rights were violated under the Seventeenth and
Nineteenth Amendments to the United States Constitution (ibid.), it is apparent his
claims instead arise under the Fourteenth Amendment’s Due Process Clause.1
There are six named Defendants: (1) Micheal [sic] Myers, who is identified
as the Director of DCCC; (2) Capt. West, who is sued in his or her official capacity;
(3) Lt. Sullivan, who is sued in his or her official capacity; (4) Sgt. Moss, who is
sued in his or her official capacity; (5) Officer Gillispie, who is sued in his or her
individual capacity; and (6) Officer Penaherrara. Because Walton does not specify
in which capacity Director Myers and Officer Penaherrara are being sued, the court
must assume his claims are brought against these two Defendants in their official
capacities only. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir.
1999) (“Because section 1983 liability exposes public servants to civil liability and
damages, we have held that only an express statement that they are being sued in
their individual capacity will suffice to give proper notice to the defendants. Absent
such an express statement, the suit is construed as being against the defendants in
their official capacity.”).
The handwritten Complaint is extremely difficult to read, and portions are
completely illegible, but, in general, Walton alleges (1) his right hand was broken
when Officer Penaherrara picked him up and bent his arm backwards, and (2) he
suffered a gash under his left eye after being struck by Officer Gillispie. Walton
allegedly sustained these injuries between April 10 and April 13, 2020.
Excessive force claims of pretrial detainees, such as Walton, are analyzed
under an objective reasonableness standard. Ryan v. Armstrong, 850 F.3d 419, 427
(8th Cir. 2017). A court must assess the actions of each officer “from the perspective
of a reasonable officer on the scene, including what the officer knew at the time, not
with the 20/20 vision of hindsight.” Id. (quoting Kingsley v. Hendrickson, 576 U.S.
The Seventeenth Amendment requires the popular election of senators, and
the Nineteenth Amendment gave women the right to vote.
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389, 397 (2015)). A court must also account for the “legitimate interests that stem
from [the government’s] need to manage the facility in which the individual is
detained,” appropriately deferring to “policies and practices that in th[e] judgment”
of jail officials “are needed to preserve internal order and discipline and to maintain
institutional security.” Id. (quoting Bell, 441 U.S. at 520). 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 force; the severity of the
security problem at issue; the threat reasonably perceived by the officer;
and whether the plaintiff was actively resisting.
Id. (quoting Kingsley, 576 U.S. at 397).
There simply are not enough facts alleged in Walton’s Complaint to permit a
reasonable inference to be drawn that Officers Penaherrara and Gillispie violated
Walton’s constitutional rights. Without being provided more information concerning
the circumstances under which the officers were acting, there is not a sufficient
factual basis for concluding their actions were objectively unreasonable.
Director Myers, Captain West, Lieutenant Sullivan, and Sergeant Moss are
not alleged to have physically injured Walton or engaged in any other misconduct.
Also, because these four Defendants and Officer Penaherrara are sued only in their
official capacities, any claims made against them are in effect being made against
Douglas County. “A suit against a public employee in his or her official capacity is
merely a suit against the public employer.” Johnson, 172 F.3d at 535 (8th Cir. 1999);
Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (“A suit against a public
official in his official capacity is actually a suit against the entity for which the
official is an agent.”).
To prevail on a claim alleged against Douglas County, Walton must show that
the constitutional violation resulted from (1) an official “policy,” (2) an unofficial
“custom,” or (3) a deliberately indifferent failure to train or supervise. Corwin v. City
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of Independence, 829 F.3d 695, 699 (8th Cir. 2016). “Official policy involves ‘a
deliberate choice to follow a course of action ... made from among various
alternatives’ by an official who has the final authority to establish governmental
policy.” Jane Doe A By & Through Jane Doe B v. Special Sch. Dist. of St. Louis
Cty., 901 F.2d 642, 645 (8th Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475
U.S. 469, 483 (1986)). “[A] plaintiff may establish municipal liability through an
unofficial custom of the municipality by demonstrating ‘(1) the existence of a
continuing, widespread, persistent pattern of unconstitutional misconduct by the
governmental entity's employees; (2) deliberate indifference to or tacit authorization
of such conduct by the governmental entity’s policymaking officials after notice to
the officials of that misconduct; and (3) that plaintiff was injured by acts pursuant to
the governmental entity's custom, i.e., that the custom was a moving force behind
the constitutional violation.’” Malone v. Hinman, 847 F.3d 949, 955 (8th Cir. 2017)
(quoting Corwin, 829 F.3d at 699-700). A municipal liability claim based on a theory
of inadequate training or supervision is simply an extension of a claim based on a
“policy” or “custom” theory of municipal liability. Marsh v. Phelps Cty., 902 F.3d
745, 751 (8th Cir. 2018).
Walton’s allegations fail to show that any actions were taken pursuant to a
policy or custom of Douglas County.2 “Although [a plaintiff] need not set forth with
specificity the existence of an unconstitutional policy or custom at the pleading
stage, he must nonetheless present some allegations, references, events, or facts from
... which the court could begin to draw an inference that the conduct complained of
... resulted from an unconstitutional policy or custom of the County or a deliberate
choice by a decision-maker with final authority.” Cotton v. Douglas Cty. Dep't of
Corr., No. 8:16CV153, 2016 WL 5816993, at *6 (D. Neb. Oct. 5, 2016).
On its own motion, the court will grant Walton leave to file an amended
complaint. If Walton chooses to bring an individual-capacity claim against Officer
Penaherrara or any other Defendant, he should keep in mind that he “must plead that
each Government-official defendant, through the official’s own individual actions,
Walton merely alleges that “the Director trains each officer to protect
themselves, but they sometimes go overboard.” (Filing 1 at 8.)
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has violated the Constitution.” Iqbal, 556 U.S. (2009). That is to say, Walton must
explain how each Defendant personally participated in the alleged constitutional
Finally, Walton has filed a motion for appointment of counsel (Filing 17). The
court cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444,
447 (8th Cir. 1996), the Eighth Circuit explained that “[i]ndigent civil litigants do
not have a constitutional or statutory right to appointed counsel.” Trial courts have
“broad discretion to decide whether both the plaintiff and the court will benefit from
the appointment of counsel, taking into account the factual and legal complexity of
the case, the presence or absence of conflicting testimony, and the plaintiff's ability
to investigate the facts and present his claim.” Id. No such benefit is apparent at this
time. Thus, Walton's request for the appointment of counsel will be denied without
In its present form, Walton's Complaint fails to state a claim upon which relief
may be granted against any Defendant, and therefore is subject to preservice
dismissal under 28 U.S.C. §§ 1915(e)(2) and 1915A. On the court’s own motion,
however, Walton shall have 30 days from the date of this Memorandum and Order
to file an amended complaint that states a plausible claim for relief. But if an
amended complaint is not filed in a timely manner, this action will be dismissed.
IT IS THEREFORE ORDERED:
1. Plaintiff shall have 30 days to file an amended complaint in accordance
with this Memorandum and Order. Failure to file an amended complaint
within the time specified by the court will result in the court dismissing
this case without further notice to Plaintiff.
2. In the event Plaintiff files an amended complaint, Plaintiff shall restate the
allegations of the Complaint (Filing 1) and any new allegations. Failure to
consolidate all claims into one document may result in the abandonment
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of claims. Plaintiff is warned that an amended complaint will supersede,
not supplement, his prior pleadings.
3. The court reserves the right to conduct further review of Plaintiff’s claims
in the event he files an amended complaint.
4. The Clerk of the Court is directed to set a pro se case management deadline
using the following text: February 5, 2021—amended complaint due.
5. Plaintiff’s motion to appoint counsel (Filing 17) is denied without
prejudice to reassertion.
6. Plaintiff shall keep the court informed of his current address at all times
while this case is pending. Failure to do so may result in dismissal without
Dated this 6th day of January, 2021.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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