United States District Court, E.D. Missouri, Southeastern Division
ALAN D. TURNER, Plaintiff,
UNKNOWN TILLMAN, et al., Defendants.
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE.
matter comes before the Court on plaintiff Alan D.
Turner's motion for leave to amend his complaint (Docket
No. 12) and motion to appoint counsel (Docket No. 13). For
the reasons discussed below, the motion to amend will be
denied in part and granted in part, and the motion to appoint
counsel will be denied at this time.
has filed a motion to amend his complaint pursuant to
Fed.R.Civ.P. 15(a). (Docket No. 12). He seeks to add the City
of Cape Girardeau as a defendant. (Docket No. 12-1 at 1). In
support of this claim, plaintiff states that the Cape
Girardeau Police Department trains its officers that when an
officer “feel[s] the need to take a person
down…it is noted and taught that the officer is to go
or take out the legs first, before using any other
force.” (Docket No. 12-1 at 2). He states that it is
also a policy that “all officers must wear a body cam
while on duty.” Plaintiff alleges that Officers Tillman
and Davis “failed to go for the legs first in this
incident, ” but instead struck him repeatedly in the
face and head. He further alleges that the officers were not
wearing body cameras, despite a policy that all officers must
wear one while on duty.
prevail on a claim against a municipality, a plaintiff must
establish the municipality's liability for the alleged
conduct. Kelly v. City of Omaha, Neb., 813 F.3d
1070, 1075 (8th Cir. 2016). Such liability may
attach if the constitutional violation “resulted from
(1) an official municipal policy, (2) an unofficial custom,
or (3) a deliberately indifferent failure to train or
supervise.” Mick v. Raines, 883 F.3d 1075,
1089 (8th Cir. 2018). See also Marsh v. Phelps
Cty., 902 F.3d 745, 751 (8th Cir. 2018)
(recognizing “claims challenging an unconstitutional
policy or custom, or those based on a theory of inadequate
training, which is an extension of the same”).
assert a claim of a deliberately indifferent failure to
train, plaintiff must allege a “pattern of similar
constitutional violations by untrained employees.”
S.M. v. Lincoln Cty., 874 F.3d 581, 585
(8th Cir. 2017). To establish a policy claim,
plaintiff must demonstrate the existence of an
unconstitutional “official policy, a deliberate choice
of a guiding principle or procedure made by the municipal
official who has final authority regarding such
matters.” See Corwin v. City of Independence,
Mo., 829 F.3d 695, 700 (8th Cir. 2016).
additional facts proposed by plaintiff fail to state a
municipal liability claim against the City of Cape Girardeau.
Regarding his failure to train allegation, plaintiff does not
take issue with the training itself. That is, he acknowledges
that police officers are trained to take out a person's
legs first, before resorting to other force. He does not
claim that this training is unconstitutional; rather, he
alleges that Officers Tillman and Davis did not follow their
training. This does not show the “pattern of similar
constitutional violations by untrained employees” that
is necessary to support a failure to train claim.
Plaintiff's policy claim regarding the use of body
cameras also fails, because plaintiff has not established
that the City of Cape Girardeau's policy regarding such
body cameras is unconstitutional. Moreover, the Court cannot
infer the existence of an unconstitutional policy or custom
from the single occurrence that plaintiff has presented.
See Wedemeier v. City of Ballwin, Mo., 931 F.2d 24,
26 (8th Cir. 1991).
proposed amendment to add the City of Cape Girardeau as a
defendant fails to state a claim. Because allowing plaintiff
to amend the complaint in such a manner would be futile, the
motion must be denied to the extent that it seeks to add the
city as a defendant. See Baptist Health v. Smith,
477 F.3d 540, 544 (8th Cir. 2007) (“[T]here
is no absolute right to amend and a court may deny the motion
based upon a finding of…futility”); Doe v.
Cassel, 403 F.3d 986, 990 (8th Cir. 2005)
(“[T]here is no absolute right to amend and a finding
of…futility of the amendment may be ground to deny a
motion to amend”); and Holloway v. Dobbs, 715
F.2d 390, 392 (8th Cir. 1983) (stating that
district court was justified in denying plaintiff's leave
to amend because the “complaint, as amended, could not
withstand a motion to dismiss”).
motion to amend also seeks to change the name of defendant
Unknown Tillman to Nelson C. Tillman. (Docket No. 12-2 at 1).
To the extent that he is seeking to correct defendant
Tillman's name, the motion will be granted, and the Clerk
of Court will be directed to change the name of Unknown
Tillman to Nelson C. Tillman.
to Appoint Counsel
has filed a second motion to appoint counsel. (Docket No.
13). The motion will be denied at this time. In civil cases,
a pro se litigant does not have a constitutional or statutory
right to appointed counsel. Ward v. Smith, 721 F.3d
940, 942 (8th Cir. 2013). See also Stevens v.
Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (stating that
“[a] pro se litigant has no statutory or constitutional
right to have counsel appointed in a civil case”).
Rather, a district court may appoint counsel in a civil case
if the court is “convinced that an indigent plaintiff
has stated a non-frivolous claim…and where the nature
of the litigation is such that plaintiff as well as the court
will benefit from the assistance of counsel.”
Patterson v. Kelley, 902 F.3d 845, 850
(8th Cir. 2018). When determining whether to
appoint counsel for an indigent litigant, a court considers
relevant factors such as the complexity of the case, the
ability of the pro se litigant to investigate the facts, the
existence of conflicting testimony, and the ability of the
pro se litigant to present his or her claim. Phillips v.
Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir.
reviewing these factors, the Court finds that the appointment
of counsel is not warranted at this time. Plaintiff has
demonstrated, at this point, that he can adequately present
his claims to the Court. The Court will entertain future
motions for appointment of counsel as the case progresses.
IT IS HEREBY ORDERED that plaintiffs motion
to amend his complaint to add the City of Cape Girardeau as a
defendant (Docket No. 12) is DENIED.
IS FURTHER ORDERED that plaintiffs request to change
the name of defendant Unknown Tillman ...