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Huskey v. Burris

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

July 17, 2019

JERRY LEE HUSKEY, JR., Plaintiff,
v.
PAUL BURRIS, et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the motion of plaintiff Jerry Lee Huskey, Jr. for leave to amend his complaint. (Docket No. 28). He has enclosed a proposed amended complaint with the motion. (Docket No. 28-1). For the reasons discussed below, the Court will deny plaintiff's motion as futile.

         Legal Standard on 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, 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 factual allegation”).

         When 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 plaintiff's 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 (8thCir. 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).

         Background

          Plaintiff is currently an inmate at the Jefferson City Correctional Center in Jefferson City, Missouri. At the time relevant to this action, however, he was incarcerated at the Phelps County Jail in Rolla, Missouri. He brings this pro se action pursuant to 42 U.S.C. § 1983.

         Plaintiff filed his original complaint on May 5, 2018, naming seventeen different defendants in their individual and official capacities. (Docket No. 1). The complaint concerned injuries suffered by plaintiff after a car accident that took place on October 24, 2016, on Highway 72 outside of Rolla. (Docket No. 1 at 9). Following the accident, plaintiff was taken to the hospital. Later, he was transported to the Phelps County Jail. He was subsequently charged with three criminal counts: first-degree involuntary manslaughter - operating a motor vehicle while in an intoxicated condition; second-degree assault - operating a vehicle while intoxicated, resulting in injury; and possession with intent to distribute methamphetamine. State of Missouri v. Huskey, No. 16-PH-CR01403-01 (25th Cir., Phelps County).[1]

         Plaintiff alleged that because of the car accident, he began experiencing neck and lower back pain. Two fillings also fell out of his teeth. Despite his requests to see a doctor, he was initially allowed to see only a nurse. Even after seeing a doctor, plaintiff claimed that he was not being properly treated. (Docket No. 1 at 10-11). He asserted that defendants were deliberately indifferent to his medical needs, especially with regard to his dental issues. Plaintiff sought actual damages in the amount of $10, 000 and punitive damages in the amount of $500, 000. (Docket No. 1 at 28).

         On January 2, 2019, the Court granted plaintiff's motion to proceed in forma pauperis, assessed an initial partial filing fee, and reviewed his complaint pursuant to 28 U.S.C. § 1915. (Docket No. 11). The Court ordered process to issue on defendant Dionne Kelly in her individual capacity as to plaintiff's claim that she failed to allow him to see a doctor and intentionally withheld prescribed medication. (Docket No. 11 at 23). The Court also ordered process to issue on defendant Matthew Shults in his individual capacity as to plaintiff's claim that he intentionally denied him medical treatment. All other claims were dismissed. (Docket No. 12).

         Summonses were issued as to defendants Kelly and Shults on January 3, 2019. (Docket Nos. 13-14). The summonses were returned executed on January 22, 2019. (Docket Nos. 15-16). Defendant Kelly answered on February 18, 2019, while defendant Shults answered on March 19, 2019. (Docket Nos. 23, 27).

         On March 20, 2019, plaintiff filed a motion to amend his complaint, which included a proposed amended complaint. (Docket No. 28). Along with the motion to amend, plaintiff filed a motion to appoint counsel and a motion to waive fees and costs. (Docket Nos. 29-30). He has also filed a motion to use attachments as exhibits, a motion to subpoena documents and records, and a motion to submit exhibits into evidence. (Docket Nos. 34-35, 46).

         Proposed Amended Complaint

          Plaintiff's proposed amended complaint names a total of twenty-three defendants: Dr. Paul Burris; Judge William E. Hickle; Prosecutor Brendon Fox; Attorney Matthew Crowell; Legal Assistant Brittany Rowe; Sheriff Rick Lisenbe; Sergeant Steven Lorts; Sergeant Dowdy; Corporal Alexander; Officer Reed; Officer Jones; Officer Carl; Attorney Ross Bush; Sergeant Joe Taylor; Corporal Anderson; Officer Letchworth; Officer Dancey; Officer Bramra; Officer Edwards; Officer Hull; Officer Wilcox; Lieutenant Matthew Shults; and Nurse Dionne Kelly. Two of these defendants, Shults and Kelly, have already been served. Twelve of these defendants were previously dismissed from this action. The remaining nine defendants are new. The proposed amended complaint is ninety-one pages long and includes numerous exhibits, which will be treated as part of the pleading. See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is part of the pleading for all purposes”).

         As before, plaintiff alleges that on October 24, 2016, while traveling on Highway 72, he was involved in a car accident and taken to a hospital. (Docket No. 28-1 at 13). Plaintiff was subsequently transported to the Phelps County Jail, where he remained for nineteen months before transfer to the Missouri Department of Corrections.

         Plaintiff states that immediately after his accident, he began having pain in his neck and lower back, along with a tingling, numbing sensation in his hands, feet, and legs. Between November 2016 and December 2016, two fillings fell out of his teeth. During this two-month span at the Phelps County Jail, he submitted three sick call forms to see Dr. Burris. Instead, he was only allowed to see Nurse Kelly.

         At the end of December 2016, plaintiff alleges that Nurse Kelly made an “uncalled for comment…referencing money, ” and then advised him that he would be put on the list to see the doctor. Plaintiff states that this “uncalled for comment” occurred in front of Officer Letchworth. On February 6, 2017, plaintiff states that he filed a grievance since he had still not seen the doctor. Nurse Kelly responded to the grievance by advising plaintiff that he had refused the appointment, which was his right. (Docket No. 28-1 at 18).

         In April 2017, plaintiff filed several more grievances. Lieutenant Shults responded by advising plaintiff that he would look into plaintiff's medical complaint. (Docket No. 28-1 at 14). On April 19, 2017, he was allowed to see Dr. Burris. (Docket No. 28-1 at 74). Dr. Burris requested that his dental work be done, and also prescribed various medications. Nevertheless, plaintiff states that “over the next couple months, ” his medical and dental condition continued to get worse. (Docket No. 28-1 at 14). During this period, he claims that Nurse Kelly failed to give him his prescribed medications. He also states that several correctional staff members commented on his swollen jaw.

         In May 2017, plaintiff asserts that Judge Hickle stated “under oath” that he would personally look into why plaintiff was not receiving treatment. (Docket No. 28-1 at 15). To plaintiff's knowledge, however, Judge Hickle has not spoken to his attorney or the jail.

         In October 2017, plaintiff's attorney, Matthew Crowell, visited plaintiff at the jail and commented on plaintiff's swollen jaw. Attorney Crowell advised plaintiff that he had met with Lieutenant Shults, and that Lieutenant Shults had given assurances that plaintiff would be taken to a dentist. Plaintiff states that Attorney Crowell instructed him to write Legal Assistant Brittany Rowe with any concerns.

         At about the same time in October, plaintiff states that he began requesting care for Hepatitis C. He alleges that Dr. Burris “again failed to treat” him.

         Plaintiff alleges that defendants have been deliberately indifferent to his serious medical and dental needs. (Docket No. 28-1 at 16). As a result, he states that he lost fillings out of his #12 and #30 teeth. (Docket No. 28-1 at 39). Plaintiff states that his #12 tooth fractured and will have to be removed. His #30 tooth became abscessed and was eventually removed when plaintiff entered the Missouri Department of Corrections. He also states that he continues to suffer pain in his lower back, legs, and hip. (Docket No. 28-1 at 41).

         Plaintiff seeks an order against Judge Hickle and Prosecutor Fox to enjoin them from “further or future physical, emotional, mental, or judicial” harm towards him. (Docket No. 28-1 at 43). He also requests $75, 000 in compensatory damages against each defendant, as well as $250, 000 in punitive damages against defendants Burris, Kelly, Crowell, Rowe, Bush, Lisenbe, Shults, Lorts, Anderson, and Letchworth. (Docket No. 28-1 at 43-44).

         Discussion

          Plaintiff has filed a motion to amend along with a proposed amended complaint that does the following: adds claims to the two defendants who have already been served; realleges claims against twelve defendants who were previously dismissed on § 1915 review; and adds claims against nine new defendants. The Court has reviewed plaintiff's proposed amended complaint in its entirety. For the reasons discussed below, the Court finds that plaintiff's proposed amended complaint fails to state any additional claims against defendants Shults and Kelly, and fails to state any claim whatsoever against the remaining defendants. Therefore, the Court will deny plaintiff's motion to amend as futile.

         A. Official Capacity Claims

         In an official capacity claim against an individual, the claim is actually “against the governmental entity itself.” See White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017). Thus, a “suit against a public employee in his or her official capacity is merely a suit against the public employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). See also Brewington v. Keener, 902 F.3d 796, 800 (8th Cir. 2018) (explaining that official capacity suit against sheriff and his deputy “must be treated as a suit against the County”); Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016) (stating that a “plaintiff who sues public employees in their official, rather than individual, capacities sues only the public employer”); and Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (stating that a “suit against a public official in his official capacity is actually a suit against the entity for which the official is an agent”).

         Here, defendants Hickle, Fox, Lisenbe, Shults, Taylor, Lorts, Dowdy, Anderson, Alexander, Letchworth, Reed, Jones, Carl, Dancey Bramra, Edwards, Hull, and Wilcox are allegedly employed by Phelps County. Defendants Burris and Kelly are allegedly employed by Advanced Correctional Healthcare (ACH). Defendants Crowell, Bush, and Rowe are allegedly employed by the Missouri State Public Defenders Office. Plaintiff's official capacity claims against these defendants are actually claims against their respective employers. To prevail on such claims, he must establish the employer's liability for the alleged conduct. Kelly, 813 F.3d at 1075.

         i. Phelps County Defendants

          Plaintiff's official capacity claims against the Phelps County defendants are insufficient to pass § 1915 review because plaintiff has not alleged any facts showing an unconstitutional policy, custom, or failure to train.

         A local governing body such as Phelps County can be sued directly under § 1983. See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). 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”). Thus, there are three ways in which plaintiff can potentially prove the liability of Phelps County.

         First, plaintiff can show the existence of an unconstitutional policy. “Policy” refers to “official policy, a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters.” Corwin v. City of Independence, Mo., 829 F.3d 695, 700 (8th Cir. 2016). See also Russell v. Hennepin Cty., 420 F.3d 841, 847 (8th Cir. 2005) (“A policy is a deliberate choice to follow a course of action made from among various alternatives by the official or officials responsible…for establishing final policy with respect to the subject matter in question”). For a policy that is unconstitutional on its face, a plaintiff needs no other evidence than a statement of the policy and its exercise. Szabla v. City of Brooklyn, Minn., 486 F.3d 385, 389 (8th Cir. 2007). However, when “a policy is constitutional on its face, but it is asserted that a municipality should have done more to prevent constitutional violations by its employees, a plaintiff must establish the existence of a ‘policy' by demonstrating that the inadequacies were a product of deliberate or conscious choice by the policymakers.” Id. at 390.

         Alternatively, plaintiff can establish a claim of liability based on an unconstitutional “custom.” In order to do so, plaintiff must demonstrate:

1) The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees;
2) Deliberate indifference to or tacit authorization of such conduct by the governmental entity's policymaking officials after notice to the officials of that misconduct; and
3) That plaintiff was injured by acts pursuant to the governmental entity's custom, i.e., that the custom was a moving force behind the constitutional violation.

Johnson v. Douglas Cty. Med. Dep't, 725 F.3d 825, 828 (8th Cir. 2013).

         Finally, plaintiff can assert a municipal liability claim by establishing a deliberately indifferent failure to train or supervise. To do so, 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).

         A plaintiff does not need to specifically plead the existence of an unconstitutional policy or custom. Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th Cir. 2004). However, at a minimum, the complaint must allege facts supporting the proposition that an unconstitutional policy or custom exists. Doe ex rel. Doe v. Sch. Dist. of City of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003).

         Plaintiff makes no allegations to support the proposition that Phelps County had an unconstitutional policy or custom. That is, he has not demonstrated that his constitutional rights were violated because of “a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters, ” as is necessary to establish an unconstitutional policy. Furthermore, he has not shown the “existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees, ” much less that such misconduct was authorized by Phelps County officials, such as is necessary to establish an unconstitutional custom.

         Plaintiff does state that certain Phelps County employees failed to supervise or train their subordinates. These allegations, however, simply state a cause of action, without providing any factual support. See Johnson v. Precythe, 901 F.3d 973, 977 (8th Cir. 2018) (stating that a “pleading must offer more than…a formulaic recitation of the elements of a cause of action to state a plausible claim for relief”). In particular, he makes no attempt to present facts showing a “pattern of similar constitutional violations by untrained employees, ” which is necessary to establish a deliberately indifferent failure to train or supervise on the part of a municipality. Therefore, plaintiff's official capacity claims against the Phelps County defendants are insufficient to pass § 1915 review.

         ii. ACH Defendants

          Plaintiff's official capacity claims against the ACH defendants are insufficient to pass § 1915 review because plaintiff has not alleged any facts showing that a policy, custom, or official action caused his alleged constitutional injury.

         ACH is a private company that contracts with the Phelps County Jail to provide medical services. A corporation acting under color of state law cannot be liable on a respondeat superior theory.” Smith v. Insley's Inc., 499 F.3d 875, 880 (8th Cir. 2007). Rather, to support a claim against such a corporation, a plaintiff “must show that there was a policy, custom, or official action that inflicted an actionable injury.” Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006). See also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975 (8th Cir. 1993) (stating that a corporation acting under color of state law will only be held liable where “there is a policy, custom or action by those who represent official policy that inflicts injury actionable under § 1983”).

         Plaintiff alleges no facts to establish that his alleged denial of medical care resulted from a policy, custom, or official action on the part of ACH. Therefore, his official capacity claims against the ACH defendants are insufficient to pass § 1915 review.

         iii. Missouri State Public Defenders Office

          Plaintiff's official capacity claims against the Missouri State Public Defenders Office defendants are inadequate for purposes of § 1915 review because the State Public Defenders Office is not suable under § 1983.

         “Section 1983 provides for an action against a ‘person' for a violation, under color of law, of another's civil rights.” McLean v. Gordon, 548 F.3d 613, 618 (8th Cir. 2008). See also Deretich v. Office of Admin. Hearings, 798 F.2d 1147, 1154 (8th Cir. 1986) (stating that “[§] 1983 provides a cause of action against persons only”). However, “neither a State nor its officials acting in their official capacity are ‘persons' under § 1983.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). See also Calzone v. Hawley, 866 F.3d 866, 872 (8th Cir. 2017) (stating that a “State is not a person under § 1983”); and Kruger v. Nebraska, 820 F.3d 295, 301 (8th Cir. 2016) (stating that “a state is not a person for purposes of a claim for money damages under § 1983”). Furthermore, an agency exercising state power is also not a person subject to suit under § 1983. See Barket, Levy & Fine, Inc. v. St. Louis Thermal ...


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