United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE.
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 plaintiffs official capacity
claim against defendant Cole Hansens, as well as plaintiffs
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
plaintiffs claim of excessive force.
U.S.C. § 1915(b)(1)
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.
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.
Standard on Initial Review
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 (8th Cir. 2016). See also
Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73
(8th Cir. 2016) (stating that court must accept
factual allegations in complaint as true, but is not required
to "accept as true any legal conclusion couched as a
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. Petray, 795 F.3d 777, 787
(8th Cir. 2015). However, even pro se complaints
are required to allege facts which, if true, state a claim
for relief as a matter of law. Martin v. Aubuchon,
623 F.2d 1282, 1286 (8th Cir. 1980). See also
Stone v. Harry, 364 F.3d 912, 914-15 (8th
Cir. 2004) (stating that federal courts are not required to
"assume facts that are not alleged, just because an
additional factual allegation would have formed a stronger
complaint"). In addition, affording a pro se complaint
the benefit of a liberal construction does not mean that
procedural rules in ordinary civil litigation must be
interpreted so as to excuse mistakes by those who proceed
without counsel. See McNeil v. United States, 508
U.S. 106, 113 (1993).
is currently incarcerated at the Southeast Correctional
Center (SECC) in Charleston, Missouri. He brings this pro se
civil action pursuant to 42 U.S.C. § 1983. His complaint
names Correctional Officer Cole Hansens as the sole
defendant. (Docket No. 1 at 2). Officer Hansens is
sued in both his official and individual capacities.
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.
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).
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.
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).
alleges that Officer Hansens pushed him inside the cell and
"yanked the leash" that was connected to the
handcuffs. (Docket No. 1 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.
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.
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.
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.
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 ...