United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. COLLINS UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant Herbert L.
Bernsen's Motion to Dismiss (Doc. 28). The motion is
fully briefed and ready for disposition. The parties have
consented to the jurisdiction of the undersigned United
States Magistrate Judge pursuant to 28 U.S.C. 636(c)(1) (Doc.
39). For the following reasons, Defendant's Motion will
Legal Standard for a Motion to Dismiss
Rule of Civil Procedure 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Federal Rule of Civil Procedure
12(b)(6) provides for a motion to dismiss based on the
“failure to state a claim upon which relief can be
granted.” To survive a motion to dismiss a complaint
must show “ ‘that the pleader is entitled to
relief, ' in order to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.'” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice” to defeat a
motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556).
“[O]nly a complaint that states a plausible claim for
relief survives a motion to dismiss.” Iqbal,
556 U.S. at 679 (citing Twombly, 550 U.S. at 556).
The pleading standard of Rule 8 “does not require
‘detailed factual allegations, ' but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555). “When ruling on a
defendant's motion to dismiss, a judge must accept as
true all of the factual allegations contained in the
complaint.” Erickson v. Pardus, 551 U.S. 89,
94 (2007). All reasonable inferences from the complaint must
be drawn in favor of the nonmoving party. Schaaf v.
Residential Funding Corp., 517 F.3d 544, 549 (8th Cir.
January 19, 2017, pro se Plaintiff Dwayne Garrett
(“Plaintiff”) filed a Complaint pursuant to 42 U.S.C.
§ 1983, a “Motion for Injunctive Relief and
Counsel, ” and a “Motion for Counsel”
(Docs. 1, 4, 5). On March 7, 2017, the Honorable Carol E.
Jackson granted Plaintiff's request for counsel and
directed the Clerk of Court to appoint counsel pursuant to
the Plan for the Appointment of Pro Bono Counsel (Doc. 8).
Judge Jackson also denied Plaintiff's motion for
injunctive relief in which he requested to be moved to a
federal prison, without prejudice, in light of the
appointment of counsel (Doc. 9). On May 15, 2017, Plaintiff,
with the assistance of newly appointed counsel, filed an
Amended Complaint pursuant to 42 U.S.C. § 1983 against
Defendant Herbert L. Bernsen (“Defendant”) in his
official capacity only for failure to protect (Count I) and
deliberate indifference to serious medical needs (Count II)
(Doc. 23). Defendant Bernsen is the Director for the St.
Louis County Department of Justice Services, the organization
responsible for the management, operation, and security of
the Saint Louis County Justice Center (the “Justice
Center”) (Id.). Plaintiff indicates that:
A reasonable opportunity for further investigation and
discovery will likely reveal evidentiary support for claims
against other defendants, namely, Justice Center staff
member(s) in their individual capacity(ies) for failure to
protect Plaintiff and for deliberate indifference to his
serious medical needs, in violation of Plaintiff's rights
under the Eighth and Fourteenth Amendments to the United
(Id. at ¶5 n.1). As of today's date,
Plaintiff has not filed an amended complaint and the time to
so under the Case Management Order has expired (See
facts, in the light most favorable to Plaintiff, are as
follows. On October 12, 2016, Plaintiff began his period of
incarceration at the Justice Center (Doc. 23 at ¶6).
During intake, Plaintiff informed the intake officials
including a nurse and an officer on duty that he is a
homosexual transgender person who receives female hormone
therapy and has breasts (Id. at ¶7). He further
informed the intake officials that due to his sexual identity
and physical traits, the facility should be mindful of his
safety and careful in selecting his cellmate (Id.).
However, on October 13, 2016, booking officers placed
Plaintiff with a cellmate who was exhibiting plainly
observable behavioral abnormalities (Id. at 8). Such
abnormalities included pacing his cell in the nude, and
lifting up Plaintiff's bed covers to look for a cellular
phone despite a clear restriction on cellular phones in the
same day, Plaintiff was permitted to briefly leave his cell
and go to a common area (Id. at ¶9). While
there, Plaintiff told the officer on watch that he was
fearful of his safety due his cellmate's strange behavior
(Id.). The officer told Plaintiff that the Justice
Center does not change cellmate assignments for the
“convenience” of the inmates (Id.). He
instructed Plaintiff to return to his cell (Id.).
night, Plaintiff's cellmate woke him up and attempted to
force him to perform oral sex (Id. at ¶10).
When Plaintiff refused, the cell mate violently assaulted
Plaintiff, sodomized him with a travel-sized shampoo bottle,
and raped him (Id.). Afterward, Plaintiff was
bleeding from his rectum (Id. at ¶11).
Plaintiff used a towel to clean himself and changed out of
his bloodied boxers and pants into a clean uniform
the Justice Center has a policy requiring officers to monitor
inmate activities at night by patrolling the halls
surrounding inmate cells and pushing buttons, that night
officers were socializing in a rotunda outside the cellblock
(Id. at ¶¶12-13). Consistent with prior
practice, officers only rushed back into the cellblock to
push the buttons when required, and then returned to the
rotunda to socialize (Id. at ¶13).
the incident, Plaintiff's cellmate pushed a call button
to summon an officer under the pretext that he needed to see
his girlfriend (Id. at ¶15). Once an officer
arrived, Plaintiff immediately reported to the officer that
he had just been raped by his cellmate and needed medical
attention (Id. at ¶16). Plaintiff pleaded with
the officer to remove him from the cell but the officer
refused (Id.). Plaintiff, in an effort to be
removed, told the officer he was suicidal, causing the
officer to remove Plaintiff from the cell and strap him to a
metal chair (Id. at ¶¶17-18). The officer
then threatened Plaintiff, telling Plaintiff that he would
wish he had simply stayed in his cell (Id. at
twenty minutes later, a nurse arrived (Id. at
¶19). Plaintiff explained to the nurse that he was not
suicidal but had just been sexually assaulted and was
bleeding from his rectum (Id.). The nurse told
Plaintiff that because Plaintiff reported the he was
suicidal, Justice Center procedure prohibited Plaintiff from
returning to his cell until a psychologist could examine him
(Id. at ¶20). Nonetheless, the nurse allowed
Plaintiff to return to his cell (Id.). ...