United States District Court, E.D. Missouri, Northern Division
HARRISON C. MAY, II, Plaintiff,
DENNIS WOOLFOLK, et al., Defendants.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
case is before the Court for preservice screening under the
provisions of the Prison Litigation Reform Act. This Court is
required to review complaints in civil actions in which a
prisoner seeks redress from a governmental entity, or an
officer or employee of a governmental entity. 28 U.S.C.
Harrison C. May, II, an inmate at Moberly Correctional
Center, commenced this civil action on November 28, 2016,
naming as defendants Dennis Woolfolk,  Dean Minor, Alan
Earls, and Unknown Powelson (a correctional officer), all
employees of the Missouri Department of Corrections, in their
individual capacities. Plaintiff has paid the statutory
$400.00 filing fee. The Court has determined that
petitioner's complaint survives review pursuant to 28
U.S.C. § 1915A as to defendants Woodfolk and Powelson in
their individual capacities, and the Court will direct
plaintiff to effect service of process as to those
defendants. Plaintiff's claims against defendants Minor
and Earls will be dismissed without prejudice.
U.S.C. § 1915A
to the screening provisions of the Prison Litigation Reform
Act, the Court must determine whether the causes of action
stated in the complaint: (1) are frivolous or malicious; (2)
fail to state claims upon which relief may be granted; or (3)
seek monetary relief against a defendant who is immune from
such relief. See 28 U.S.C. § 1915A(b).
complaint is frivolous if it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). To state a claim
under 42 U.S.C. § 1983, a plaintiff must allege that a
defendant, acting under color of state law, deprived him of a
right, privilege, or immunity secured by the United States
Constitution or by federal law. West v. Atkins, 487
U.S. 42, 48 (1988). Although detailed factual allegations are
not required, a “complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has facial plausibility when
the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S at 678.
Plaintiff alleges that Woolfolk was indifferent to his
serious medical need and Powelson used excessive force
against him on November 28, 2015. The relevant events
apparently took place in the food service area. Specifically,
plaintiff alleges that Woolfolk denied him medical attention
despite the fact that: (1) “Cook II Robinson (via
Officer Stapleton)” told Woolfolk that plaintiff was
physically unable to work; and (2) plaintiff told Woolfolk
that he was unable to walk. (Docket No. 1 at 5). Plaintiff
alleges that Powelson subsequently arrived on the scene, at
which time plaintiff was in restraints and was seated.
Plaintiff alleges that Powelson ordered him to walk to
“the hole, ” and when plaintiff stated that he
could not walk, Powelson pepper sprayed him for no reason.
complaints are to be held to “less stringent standards
than formal pleadings drafted by lawyers.” Haines
v. Kerner, 404 U.S. 519, 520 (1971). Plaintiff's
allegations state plausible claims for relief under §
1983, and the Court will allow plaintiff's individual
capacity claims against Woolfolk and Powelson to proceed.
See Mullen v. Smith, 738 F.2d 317, 318-19 (8th Cir.
1984) (reversing the district court's dismissal for
failure to state a claim and holding that plaintiff did state
a claim by alleging that defendants removed him from his bed
and ordered him to walk even though he was unable to, and
told him he would receive no medical treatment or tests);
Treats v. Morgan, 308 F.3d 868, 872-73 (8th Cir.
2002) (“A basis for an Eighth Amendment claim exists
when . . . an officer uses pepper spray without warning on an
inmate who may have questioned his actions but who otherwise
poses no threat.”).
claims against defendant Dean Minor, plaintiff alleges that
he responded to plaintiff's grievance by stating that
excessive force had not been used against him, when findings
indicated he was pepper sprayed while restrained. For his
claims against defendant Allan Earls, plaintiff alleges that
he responded to plaintiff's grievance appeal by stating
that he was pepper sprayed because he refused to submit to
restraints. Plaintiff alleges that both of these defendants
conspired to interfere with his civil rights. However, such
allegations do not state a claim upon which relief can be
granted. Plaintiff does not have an independent
constitutional right to a grievance procedure, and therefore
no constitutional right was violated by Minor and Earls in
their handling of plaintiff's grievance(s) and/or
grievance appeal(s). See Lomholt v. Holder, 287 F.3d
683, 684 (8th Cir. 2002) (citing Buckley v. Barlow,
997 F.2d 494, 495 (8th Cir. 1993)) (a prison grievance
procedure is merely a procedural right; it confers no
substantive rights upon inmates). Plaintiff therefore does
not state a claim under § 1983 with respect to his
allegations regarding Minor and Earls's handling of his
grievance(s) and grievance appeal(s). West, 487 U.S.
at 48 (to state a claim under 42 U.S.C. § 1983, a
plaintiff must allege that a defendant, acting under color of
state law, deprived him of a right, privilege, or immunity
secured by the United States Constitution or by federal law).
has paid the required civil filing fee in this matter.
Consequently, the Court is not responsible for serving
process pursuant to 28 U.S.C. § 1915(d). Plaintiff is
responsible for having the summons and Complaint served
within the time set forth by Rule 4(m) of the Federal Rules
of Civil Procedure. Fed.R.Civ.P. 4(c)(1); Fed.R.Civ.P. 4(m)
(“If a defendant is not served within 90 days after the
complaint is filed, the court - on motion or on its own after
notice to the plaintiff - must dismiss the action without
prejudice against that defendant . . . ”.).
is advised that the Federal Rules of Civil Procedure provide
that any person who is at least 18 years of age and not a
party may serve a summons and complaint. Fed.R.Civ.P. 4(c)(2)
(Emphasis added.) This means that plaintiff
is not permitted to serve process himself. Instead, plaintiff
must try to find a qualified person to serve process on the
complaint. If plaintiff cannot do so, he may move the Court
to effect service of process for him pursuant to Rule
4(c)(3). If plaintiff chooses to file such a motion, he must
explain to the Court, in writing, what steps he took to
locate a qualified person to serve process on the complaint,
and why he was unsuccessful.
IT IS HEREBY ORDERED that plaintiff shall cause service of
process to be effected upon defendants Dennis Woolfolk and
Officer Powelson within the time set forth in Rule 4(m) of
the Federal Rules of Civil Procedure.
FURTHER ORDERED that the complaint and all of plaintiff's
causes of action against defendants Dean Minor and Alan Earls
are DISMISSED without prejudice. A ...