RONNIE L. WHITE, District Judge.
This matter is before the Court on the motion of plaintiff Christopher Taylor, II for leave to commence this civil action without prepayment of the filing fee. (Docket No. 2). Having reviewed the motion and the financial information contained therein, the Court has determined that plaintiff lacks sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court will dismiss plaintiff's official capacity claim against defendant Cole Hansens, as well as plaintiff's due process claim against Hansens in his individual capacity. However, the Court will direct the Clerk of Court to issue process on defendant Hansens in his individual capacity as to plaintiff's claim of excessive force.
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 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 $10.00, until the filing fee is fully paid. Id.
Plaintiff has not submitted an inmate account statement. After reviewing the financial information contained in plaintiffs motion, the Court will require him to pay an initial partial filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the Court with a certified copy of his prison account statement, the Court should assess an amount "that is reasonable, based on whatever information the court has about the prisoner's finances"). If plaintiff is unable to pay the initial partial filing fee, he must provide documentation in support of his claim.
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 can be granted. To state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief, which is more than a "mere possibility of misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 679 (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 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 upon judicial experience and common sense. Id. at 679. The court must "accept as true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Barton v. Taber, 820 F.3d 958, 964 (8
When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit of a liberal construction. 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. Pe tray, 795 F .3d 777, 787 (8
Plaintiff is currently incarcerated at the Southeast Correctional Center (SECC) in Charleston, Missouri. He brings this prose civil action pursuant to 42 U.S.C. § 1983. His complaint names Correctional Officer Cole Hansens as the sole defendant.
Plaintiff states that on November 13, 2018, he was an inmate at SECC, assigned to unit #2 in administrative segregation. (Docket No. 1 at 4). Officer Hansens and Officer Riley Johnson were conducting showers on this day. Officer Johnson came to plaintiffs cell and asked him if he wanted to take a shower. Plaintiff responded by telling Officer Hansens that plaintiff and Officer Johnson had "had a situation on November 11, 2018," and that plaintiff felt uncomfortable with Officer Johnson placing him in the shower.
Officer Hansens opened plaintiffs food port and placed him in wrist restraints, with a leash connected to the handcuffs. Plaintiff states that Officer Hansens then took him to the showers. He states that he was in the shower for ten minutes. While drying off, plaintiff states that he saw Officer Hansens and Officer Johnson in his cell. He was told by another offender that Officer Johnson was in his bed, on the top bunk. (Docket No. 1 at 5).
Plaintiff advised Officer Hansens that he was done with his shower and ready to return to his cell. Officer Hansens replied that he would have Officer Johnson take him back if plaintiff kept rushing. Officer Hansens also asked plaintiff if he had a "celly." Plaintiff responded that he did not. He was subsequently placed back into wrist restraints and escorted back to his cell.
Plaintiff asked Officer Hansens why Officer Johnson had been in his bed. Officer Hansens answered that "he didn't know and didn't care." While approaching his cell, plaintiff states that he saw pictures scattered about and some recent mail destroyed. Plaintiff told Officer Hansens that he wanted to speak to a sergeant and that he would not step into his cell "until this matter is taken care of." (Docket No. 1 at 5-6).
Plaintiff alleges that Officer Hansens pushed him inside the cell and "yanked the leash" that was connected to the handcuffs. (Docket No. I at 6). This forced plaintiffs hands and arms through the food port, causing him pain. He pulled back on his arms and again asked to speak to a sergeant. Officer Hansens allegedly responded by yanking him through the food port again. Next, plaintiff claims that Officer Hansens sprayed him in the face with pepper spray, which went into his eyes and mouth.
Sergeant Stephanie Noisworthy arrived and asked for an explanation. Plaintiff attempted to tell to her that he was "calling for a white shirt" when Officer Hansens threw him inside his cell and pepper sprayed him for no reason. He advised Sergeant Noisworthy that he could not breathe and was feeling suicidal because of the pepper spray.
Sergeant Noisworthy and Officer Damien Culbertson escorted plaintiff from his cell to a bench. (Docket No. 1 at 6-7). As he exited the cell, plaintiff states that he began spitting on the ground due to the pepper spray. (Docket No. 1 at 7). He states that his face felt as though it "was falling off' and that he was having trouble breathing.
Plaintiff was seated on the bench in full restraints, with his hands and feet secured. At that point, Officer Hansens walked up behind him, wrapped his arm around his neck, and began choking him. According to plaintiff, Sergeant Noisworthy gave Officer Hansens three directives to stop choking him. Eventually, Officer Hansens complied.
Lieutenant Stewart arrived and escorted plaintiff to housing unit #1, where he was allowed to rinse his face but not take a shower. He was assigned to a suicide cell, where he was later found unresponsive by Officer Lynch and taken to see the nurse. The nurse took his vitals and documented his injuries, including a red mark around his neck and bruising along his side and right arm. (Docket No. 1 at 7-8). Plaintiff alleges that ever since the incident occurred, Officer Hansens "comes around... [once] in a while to harass [him] by stating [that] sometimes [correctional officers] have to beat offenders to get [a] better understanding." (Docket No. 1 at 8).
Plaintiff claims that Officer Hansens' actions constituted the use of excessive force in violation of the Eighth Amendment. (Docket No. 1 at 11-12). He also asserts that Officer Hansens violated his right to due process under the Fourteenth Amendment by "writing a false conduct violation" that resulted in plaintiff receiving a further sixty days in administrative segregation. (Docket No. 1 at 12).
Plaintiff seeks to enjoin Officer Hansens from further physical violence and threats toward him. (Docket No. 1 at 14). He also requests $100,000 in compensatory damages and $25,000 in punitive damages.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging that Officer Hansens used excessive force against him in violation of the Eighth Amendment and wrote a false conduct report in violation of the Fourteenth Amendment. For the reasons discussed below, plaintiffs official capacity claim against Officer Hansens must be dismissed. The Court will also dismiss plaintiffs due process claim. However, the Court will direct the Clerk of Court to issue process on plaintiffs individual capacity claim against Officer Hansens for use of excessive force.
Plaintiffs claim against Officer Hansens in his official capacity must be dismissed. In an official capacity claim against an individual, the claim is actually "against the governmental entity itself." See White v. Jackson, 865 F.3d 1064, 1075 (8
"Section 1983 provides for an action against a `person' for a violation, under color of law, of another's civil rights." McLean v. Gordon, 548 F.3d 613, 618 (8
Here, plaintiff asserts that Officer Hansens is an employee of the Missouri Department of Corrections, which is a department of the State of Missouri. As noted above, an official capacity claim against an individual is actually a claim against that individual's employer. However, to the extent that the is seeking money damages, the State of Missouri is not a "person" that can be sued pursuant to § 1983. Moreover, plaintiffs claim is barred by the doctrine of sovereign immunity. Thus, plaintiff has failed to state an official capacity claim.
To the extent that plaintiff is seeking injunctive relief, he has failed to allege any facts to support official capacity liability against Officer Hansens.
A governmental entity can be sued directly under § 1983. See Monell v. Dep't ofSoc. Servs. of City of New York, 436 U.S. 658, 690 (1978). To do so, a plaintiff must establish the governmental entity's liability for the alleged conduct. Kelly, 813 F.3d at 1075. Specifically, a plaintiff 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. See Mick v. Raines, 883 F.3d 1075, 1089 (8
First, plaintiff can show the existence of an unconstitutional policy. "Policy" refers to "official policy, a deliberate choice of a guiding principle or procedure made by the ... official who has final authority regarding such matters." Corwin v. City of Independence, Mo., 829 F.3d 695, 700 (8
Alternatively, plaintiff can establish a claim of liability based on an unconstitutional "custom." In order to do so, plaintiff must demonstrate:
Johnson v. Douglas Cty. Med. Dep't, 725 F.3d 825, 828 (8
Finally, plaintiff can assert the liability of a governmental entity by establishing a deliberately indifferent failure to train or supervise. To do so, plaintiff must allege a "pattern of similar constitutional violations by untrained employees." S.M v. Lincoln Cty., 874 F.3d 581, 585 (8
A plaintiff does not need to specifically plead the existence of an unconstitutional policy or custom. Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8
Plaintiff has not presented allegations regarding any of the three methods for establishing the liability of a governmental entity. First, plaintiff has not stated that his rights were violated due to "a deliberate choice of a guiding principle or procedure" made by any official, such as is necessary to establish an unconstitutional policy. Next, plaintiff has not established the deliberate indifference to or tacit authorization of any "continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees," such as is necessary to demonstrate an unconstitutional custom. Finally, plaintiff has not alleged facts showing a "pattern of similar constitutional violations by untrained employees," such as is necessary to prove a failure to train.
Plaintiffs facts concern a single incident of alleged excessive force, occurnng on November 13, 2018. The Court cannot infer the existence of an unconstitutional policy or custom from a single occurrence. See Wedemeier v. City ofBallwin, Mo., 931 F.2d 24, 26 (8
For these reasons, plaintiffs official capacity claim against Officer Hansens must be dismissed. See Ulrich v. Pope Cty., 715 F.3d 1054, 1061 (8
Plaintiffs individual capacity claim against Officer Hansens for allegedly violating his right to due process by authoring a "false conduct violation" must be dismissed. However, his individual capacity claim against Officer Hansens for excessive force is sufficient for purposes of § 1915 review.
Plaintiff alleges that Officer Hansens wrote "a false conduct violation against" him, which resulted in plaintiff receiving an additional sixty days in administrative segregation. He asserts this is a violation of his right to due process. He has not, however, established the deprivation of a liberty interest.
The determination of whether prison officials denied an inmate due process involves a twostep inquiry. Williams v. Hobbs, 662 F.3d 994, 1000 (8
Plaintiff has not alleged that life or property is at interest in this case; thus, he must identify a liberty interest to sustain a due process claim. See Phillips, 320 F.3d at 847. Here, he states that his time in administrative segregation was lengthened due to Officer Hansens' "false" report.
The United States Supreme Court has determined that prisoners have a protected liberty interest in avoiding conditions of confinement that impose "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). As such, in order to assert a due process violation based on a liberty interest of avoiding administrative segregation, "an inmate must show that the segregation created an atypical and significant hardship on him in relation to the ordinary incidents of prison life to demonstrate that his liberty interest was curtailed." Rahman Xv. Morgan, 300 F.3d 970, 973 (8
The Eighth Circuit has stated that an assignment to disciplinary or administrative segregation is not, in and of itself, an atypical and significant hardship. See Portley-El v. Brill, 288 F.3d 1063, 1065 (8
Here, plaintiff fails to demonstrate that his sixty-day extension of administrative segregation constituted an "atypical and significant hardship." The only fact he adduces is the length of time he was required to spend in administrative segregation. This is not, however, sufficient. See Orr v. Larkins, 610 F.3d 1032, 1033-34 (8
Plaintiff alleges that Officer Hansens used excessive force against him in violation of the Eighth Amendment. This claim is sufficient for purposes of § 1915 review.
The Eighth Amendment forbids the "unnecessary and wanton infliction of pain" constituting cruel and unusual punishment. Hudson v. McMillan, 503 U.S. 1, 9-10 (1992). See also Burns v. Eaton, 752 F.3d 1136, 1138 (8
Here, plaintiff alleges that Officer Hansens yanked his handcuffed hands and arms through a food port; that Officer Hansens deployed pepper spray into his face; that Officer Hansens choked him while his hands and legs were restrained; and that Officer Hansens subsequently told him that correctional officers sometimes need "to beat offenders to get [a] better understanding." Plaintiff states that throughout this incident, he did not attempt to resist and that he was in restraints. These allegations must be accepted as true. See Jones v. Douglas Cty. Sheriff's Dep't, 915 F.3d 498, 499 (8
Accordingly,
A separate order of partial dismissal will be entered herewith.