McPeek v. Kelsey et al

Filing 6

OPINION AND ORDER Screening Case and Granting Leave to Amend, denying Motion to Appoint Counsel. Signed by U.S. District Judge Roberto A. Lange on 3/2/2017. (JLS)

UNITED STATES DISTRICT COURT

FILED

DISTRICT OF SOUTH DAKOTA

0 2 2017

'■Xfer

SOUTHERN DIVISION

TRAVIS RAY MCPEEK,

4:17-CV-04015-RAL

Plaintiff,
vs.

BON HOMME COUNTY SHERIFF

KELSEY; PENNINGTON COUNTY
STEPHANIE BORN; NORTHWEST
SHUTTLE, UNKNOWN AGENT;
MARICOPA COUNTY SHERIFF, FABIO
MORAN,

OPINION AND ORDER SCREENING
CASE AND GRANTING
LEAVE TO AMEND

Defendants.

Plaintiff Travis R. McPeek ("McPeek"), an inmate at the Yankton County
Jail in Yankton, South Dakota, filed this lawsuit pursuant to 42 U.S.C.
§ 1983, Doc. 1. This Court has screened his complaint pursuant to 28 U.S.C.

§ 19ISA. For the following reasons, the Court grants McPeek leave to amend
his complaint.
I.

FACTS ALLEGED IN THE COMPLAINTi

On January 4, 2017, McPeek signed an extradition agreement that he

alleges allowed Bon Homme County, South Dakota to transport him. Doc. 1 at
4. On January 12, 2017, McPeek was placed on a Northwest Shuttle and
transferred. Id. He alleges that he was mistreated during the transport. Id. at
1 This Court makes no findings of fact at this point in the case. The matters set forth in this
section are taken from the factual allegations pled in McPeek's Complaint, which this Court
must take as true on initial screening.

5-6. He appears to allege that he was denied the use of a bathroom, he was
shackled, he was stripped searched, and he was booked into county jails
without charges pending in those counties. Id. at 5. McPeek also alleges that
his medical needs were ignored, that he was denied medication, that he has
myofascial muscle and tissue damage, fibromyalgia, and that he was recently
shot five times. Id. at 6.

On February 13, 2017, McPeek filed a complaint pursuant to 28 U.S.C.

§ 1983. He raises three claims and names as defendants those who he alleges
were involved in the arrangements for the transport. Id. at 4. As relief, McPeek

requests monetary damages of $12 million. Id. at 7. McPeek also requests that
he be appointed counsel to aid him with his lawsuit. Id.
II.

LEGAL STANDARD

At this stage of the case, this Court must accept the well-pleaded
allegations in the complaint as true and draw all reasonable inferences in favor
of the non-moving party. Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444
(8th Cir. 2014). Civil rights and pro se complaints must be liberally construed.
Erickson v. Pardus, 551 U.S. 89, 94 (2007)(citation omitted); Bediako v. Stein
Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even with this construction,"a
pro se complaint must contain specific facts supporting its conclusions." Martin
V. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985); Ellis v. City of Minneapolis,
518 F. App'x 502, 504 (8th Cir. 2013). Civil rights complaints cannot be merely
conclusoty. Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993); Parker v. Porter,
221 F. App'x 481, 482 (8th Cir. 2007).

A complaint "does not need detailed factual allegations . . . [but] requires
more than labels and conclusions, and a formulaic recitation of the elements of

a cause of action will not do." BellAtl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). "If a plaintiff cannot make the requisite showing, dismissal is

appropriate." Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).
Under 28 U.S.C. § 1915A, this Court must screen prisoner claims filed in

forma pauperis and determine whether they are (1) "frivolous, malicious, or fail[
] to state a claim on which relief may be granted; or (2) seek[ ] monetary relief
from a defendant who is immune from such relief." See also Onstad v.

Wilkinson, 534 F. App'x 581, 582 (8th Cir. 2013).
III.

A.

DISCUSSION

Screening Under § 19ISA
McPeek's complaint raises three claims. He claims that defendants

violated his rights under the Fourteenth Amendment by illegally transferring
him, by mistreating him during the transfer, and by denying him medical
treatment during the transfer. McPeek does not allege which defendants
committed which acts.

1.

Count I - Illegal Transfer

McPeek claims that defendants violated his Fourteenth Amendment

rights by illegally transferring him. According to the complaint, McPeek signed
a document agreeing to be transferred, but he claims that he only agreed to be
transferred by Bon Homme County. Doc. 1 at 4. McPeek, however, does not

have a constitutional right to be transferred by a certain entity. Therefore, he

fails to state a claim upon which relief may be granted, and Count I is

dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
2.

Count II - Mistreatment

McPeek claims that defendants violated his Fourteenth Amendment

rights by mistreating him during the transfer. Doc. 1 at 5. He alleges that these
actions violated his right to be free from excessive force. Id. "In addressing an
excessive force claim brought under § 1983, analysis begins by identifying the
specific constitutional right allegedly infringed by the challenged application of
force." Graham v. Connor, 490 U.S. 386, 394 (1989). The United States Court of
Appeals for the Eighth Circuit has recognized different scenarios in which an
excessive force claim may arise, differentiating by when in the criminal process
the force was used. Where the excessive force claim arises during "pretrial

detention," protections of the Fourteenth Amendment are invoked. Walton v.
Dawson, 752 F.3d 1109, 2014 WL 2053835, at *4 (8th Cir. 2014). Here,
McPeek's excessive force claim stems from force used while he was being
transferred before trial, making it a claim under the Fourteenth Amendment.
To state an excessive force claim under the Fourteenth Amendment, a

pretrial detainee must show "that the force purposely or knowingly used
against him was objectively unreasonable." Kingsley v. Hendrickson, 135 S. Ct.

2466, 2473 (2015). "[Ojbjective reasonableness turns on the 'facts and
circumstances of each particular case.'" Id. (quoting Graham v. Connor, 490
U.S. 386, 396 (1989)).

Considerations

such

reasonableness

or

as

the

following

unreasonableness

may

of the

bear

force

on

the

used: the

relationship between the need for the use of force and the amount

of force used; the extent of the plaintiffs 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.

McPeek has not alleged facts showing the defendants were objectively
unreasonable. He seems to allege that he was denied use of a bathroom,
shackled during transport, and strip searched. Doc. 1 at 5. None of these
actions are necessarily unreasonable while transferring a prisoner, and McPeek

offers no explanation as to why they were unreasonable.
McPeek's complaint seems to allege that he was strip searched. Id. "A

search of the detainee's person when he is booked into custody may 'involve a
relatively extensive exploration,'including 'requir[ing] at least some detainees
to lift their genitals or cough in a squatting position[.]'" Maryland v. King, 133

S. Ct. 1958, 1978 (2013)(quoting United States v. Robinson, 414 U.S. 218, 227
(1973); Florence v. Bd. of Chosen Freeholders ofCty. ofBurlington, 566 U.S.
318, 334 (2012)). In Florence, the Court recognized that "correctional officials
must be permitted to devise reasonable search policies to detect and deter the
possession of contraband in their facilities." Id. at 1517. Correctional officials

are given wide latitude to create policies in the interest of their facilities'
security. Id.

McPeek's allegations suggest something more than the search explained

in King. However, his allegations are not clear. He does not allege who searched

him, where, in what context, and to what extent. He does not clearly allege a
search; that is merely what the Court believes he is alleging in the claim
concerning his treatment during the transfer. Therefore, McPeek fails to state a
claim upon which relief may be granted, and his claim based on his treatment

is dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
3.

Count III - Medical Care

McPeek alleges that he was denied adequate medical care during his
transfer. Doc. 1 at 6. "[A] prison official who is deliberately indifferent to the
medical needs of a prisoner violates the prisoner's constitutional rights."
Letterman v. Does, 789 F.3d 856, 861 (8th Cir. 2015). To state a deliberate
indifference claim, plaintiffs must show "a substantial risk of serious harm to
the victim," and "that the prison official was deliberately indifferent to that risk
of harm . . . ." Id. at 861-62 (citing Gordon v. Frank, 454 F.3d 858, 862
(8th Cir. 2006)).2
McPeek does not state a deliberate indifference claim. He alleges that he
has medical issues and his medical needs were ignored, but he does not
explain how the needs came up, who ignored them, or whether they were aware
of the risk of harm. His allegations are too vague to state a claim upon which
relief may be granted. Therefore, his claim is dismissed under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l).

2 See Teague v. Rice, 561 F. App'x 567, 568 (8th Cir. 2014)(citing Hartsfield v. Colbum, 371
F.Sd 454, 456-57 (8th Cir. 2004) as stating, "[P]retrial detainees' claims are evaluated under
Due Process Clause rather than Eighth Amendment; however, [the] same deliberateindifference framework applies to inadequate-medical-care claims under either constitutional
provision")

B.

Leave to Amend

McPeek fails to state a claim in his complaint. However, his allegations
suggest that he may have a cognizable claim; he has merely failed to state it
properly. Therefore, the court grants McPeek leave to amend his complaint. He
may file an amended complaint that rectifies the deficiencies outlined in this

order. He shall have until April 3, 2017, to file his amended complaint, or his
case will be dismissed.

C.

Motion to Appoint Counsel
In his complaint, McPeek requests that counsel be provided to assist him

in his case. Doc. 1 at 7. The court construes this as a motion to appoint
counsel. "A pro se litigant has no statutory or constitutional right to have
counsel appointed in a civil case." Stevens v. Redwing, 146 F.3d 538, 546

(8th Cir. 1998). In determining whether to appoint counsel in a pro se litigant's
civil case, the Court considers the complexity of the case and the litigant's

ability to present his claim. Id. McPeek's claims are not complex, and it is not
clear whether he is able to state a claim. Therefore, it is inappropriate to

appoint counsel at this time, and his motion is denied.
The Court is aware that this situation may change as litigation

progresses. As the Eighth Circuit instructs, the Court will "be alert to the
possibility that, because of procedural complexities or other reasons, later
developments in the case may show either that counsel should be appointed, or
that strict procedural requirements should, in fairness, be relaxed to some
degree." Williams v. Carter, 10 F.3d 563, 567 (8th Cir. 1993).
7

IV.

ORDER

Accordingly, it is ORDERED

1.

McPeek may file an eimended complaint by April 3, 2017, and, if he
fails to do so, his case will be dismissed.

2.

McPeek's Motion to Appoint Counsel {Doc. 1 at 7) is denied.

Dated March

2017.
BY THE COURT:

ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE

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