United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG, UNITED STATES DISTRICT JUDGE
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.
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 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).
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.
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
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).
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
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).
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).
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
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.
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.
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).
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.
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.
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
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.
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).
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).
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.
Official Capacity Claims
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
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
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.
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.
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.
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
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;
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).
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).
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).
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.
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.
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
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”).
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.
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.
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