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Sullivan v. Burd

United States District Court, E.D. Missouri, Eastern Division

July 3, 2019

JOHN J. SULLIVAN, Plaintiff,
BRADLEY BURD, et al., Defendants.



         This matter is before the Court on review of pro se plaintiff John J. Sullivan's third amended complaint under 28 U.S.C. § 1915. For the reasons discussed below, the Court will dismiss without prejudice plaintiffs official capacity claims against all defendants. However, the Court will direct the Clerk of Court to issue process upon the third amended complaint as to defendants Brewer, Swan, and John Doe in their individual capacities, on plaintiffs Eighth Amendment claims.

         Legal Standard for Initial Review

         Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, is malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. To state a claim for relief, a complaint must plead more than "legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a "mere possibility of misconduct." Id. at 679. "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 on its judicial experience and common sense. Id. at 679.

         When reviewing a pro se complaint under 28U.S.C. § 1915, the Court accepts the well-pled facts as true, White v. Clark, 750 F.2d 721, 722 (8th Cir. 1984), and liberally construes the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007); 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) (refusing to supply additional facts or to construct a legal theory for the pro se plaintiff that assumed facts that had not been pleaded).


         Plaintiff, currently incarcerated at Farmington Correctional Center ("FCC"), brings this action under 42 U.S.C. § 1983. The allegations of plaintiff s initial complaint (ECF No. 1), amended complaint (ECF No. 15), and second amended complaint (ECF No. 21) have been discussed in detail in the Court's prior orders and need not be repeated here. See ECF Nos. 13, 20, & 22. In summary, the prior complaints varied in the defendants named but they all focused on one main incident: the restraint of plaintiff with handcuffs, a waist chain, and a "black box"[1] by FCC correctional officers who then provided no assistance to plaintiff as he struggled to get into the transport van to return to FCC after a trip to a local hospital in August 2018.

         The Court reviewed plaintiffs prior complaints and supplements pursuant to the Prison Litigation Reform Act, 28 U.S.C. § 1915, but found the pleadings deficient. However, in light of the seriousness of plaintiff s allegations and the fact that plaintiff had plead sufficient facts to raise a legitimate Eighth Amendment question, the Court allowed plaintiff opportunities to amended his allegations. On April 16, 2019, the Court granted plaintiff a final opportunity to file a third amended complaint that names one or more directly responsible defendants, who qualify as a "person" subject to a suit under § 1983. The Court warned plaintiff that his third amended complaint would again be reviewed under 28 U.S.C. § 1915, and that a failure to comply with the Court's instructions would result in the dismissal of this action without prejudice. Plaintiff filed his third amended complaint on May 16, 2019.

         The Third Amended Complaint

         Plaintiff brings his third amended complaint under 42 U.S.C. § 1983 against seven defendants: (1) FCC correctional officer Brewer; (2) FCC correctional officer Swan; (3) FCC correctional officer Jenkins;[2] (4) FCC correctional officer John Doe; (5) FCC Deputy Warden; (6) FCC Assistant Warden; and (7) FCC Warden Terri Lawson. Plaintiff sues correctional officers Brewer, Swan, and John Doe in both their individual and official capacities. However, he sues correctional officer Jenkins, Deputy Warden, Assistant Warden, and Warden Lawson in their official capacities only.

         Like his prior complaints, plaintiffs allegations relate to the black box restraint incident that occurred in August 2018. Plaintiff was taken to a local hospital for medical treatment for a blood clot in his left leg. For transport back to FCC after treatment, plaintiff was "belly chained, ankle shackled, handcuffed, and 'black boxed.'" ECF No. 23 at 5. "Officers that were present did not assist [plaintiff] in any way, shape, or form in getting into the non-handicap accessible van used for transport." Id. Plaintiff had "to crawl and wiggle his way into the van and onto a seat," resulting in numerous injuries. Id.

         Sixty-four-year-old plaintiff alleges that FCC correctional officers Brewer, Swan, and John Doe were all present when plaintiff struggled for 15-30 minutes to get himself into the transport van without assistance. Brewer stood outside the van watching plaintiff struggle and provided no assistance. Swan, the van driver, sat in the driver's seat and offered no assistance. FCC correctional officer John Doe was sent to the hospital by officer Jenkins to put the "black box" restraint on plaintiff. Plaintiff states that John Doe could have waited until after plaintiff was in the transport van to put the black box on him, but that John Doe chose to restrain him with the black box before being loaded into the van. John Doe then watched plaintiff struggle to get into the van without providing any assistance or removing the black box.

         Plaintiff asserts that FCC correctional officer Jenkins was the "official" who ordered that the black box be used during transport and that Jenkins was at the prison gate upon plaintiffs return to FCC from the hospital, in order to confirm its use. Furthermore, plaintiff alleges that Jenkins responded with "complete indifference" when plaintiff complained to Jenkins about the way he was restrained with the black box and then provided no assistance into the van. Jenkins even threatened to punish plaintiff if plaintiff did not stop complaining. ECF No. 23 at 5.

         Plaintiff alleges that FCC Warden Terri Lawson, unnamed FCC Deputy Warden, and unnamed FCC Assistant Warden are all responsible for his injuries because of "their ability to verify the qualifications of transport staff as well as to ensure policy is followed with the humanity of offenders to be kept in mind." ECF No. 23 at 7. Plaintiff also asserts that these ...

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