United States District Court, E.D. Missouri, Eastern Division
JOHN J. SULLIVAN, Plaintiff,
BRADLEY BURD, et al., Defendants.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
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
Standard for 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, 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.
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
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" 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.
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.
Third Amended Complaint
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; (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.
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
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.
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.
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