United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court upon review of an amended
complaint filed by plaintiff Devon Scott Alvey, a prisoner
who is proceeding herein pro se and in forma pauperis. For
the reasons discussed below, the Court will direct the Clerk
of Court to issue process or cause process to issue upon
defendants Joseph Hurst and Steven Patterson in their
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 may be
granted. An action is frivolous if it "lacks an arguable
basis in either law or fact." Neitzke v.
Williams, 490 U.S. 319, 328 (1989). An action fails to
state a claim upon which relief may be granted if it does not
plead "enough facts to state a claim to relief that is
plausible on its face." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
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." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). 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 assume the
veracity of well-pleaded facts, but need not accept as true
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements."
Id. at 678 (citing Twombly, 550 U.S. at
Court must liberally construe complaints filed by laypeople.
Estelle v. Gamble, 429 U.S. 97, 106 (1976). This
means that "if the essence of an allegation is
discernible," the court should "construe the
complaint in a way that permits the layperson's claim to
be considered within the proper legal framework."
Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015)
(quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004)). However, even pro se complaints must 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). Federal courts are not required to assume facts that
are not alleged, Stone, 364 F.3d at 914-15, nor are
they required to interpret procedural rules so as to excuse
mistakes by those who proceed without counsel. See McNeil
v. United States, 508 U.S. 106, 113(1993).
brings this action pursuant to 42 U.S.C. § 1983 against
corrections officers Joseph Hurst and Steven Patterson. He
sues the defendants in their official and individual
capacities. Condensed and summarized, plaintiff alleges he
had a verbal confrontation with Hurst on January 4, 2019, and
that following that confrontation, Hurst handcuffed him and
then slammed him to the floor, even though he was posing no
threat. Plaintiff was unable to break his fall, and he hit
his head on the floor. Hurst then choked plaintiff into
unconsciousness while Patterson restrained plaintiffs legs.
When plaintiff awoke, he was evaluated by medical staff, and
complained of neck and shoulder pain. Plaintiff alleges the
incident caused him to suffer this pain and also "bad
headaches." He seeks only monetary relief.
official capacity claims will be dismissed. The Eleventh
Amendment prohibits suits for monetary relief against state
officials acting in their official capacities, Nix v.
Norman, 879 F.2d 429, 432-33 (8th Cir. 1984), and
"state officers sued for damages in their official
capacity are not 'persons' for purposes of the suit
because they assume the identity of the government that
employs them." Will v. Michigan Dept. of State
Police, 491 U.S. 58, 71 (1989).
liberally construed the amended complaint, the Court
determines that plaintiff has stated plausible excessive use
of force claims against both defendants in their individual
capacities. The Court will therefore require the defendants
to respond to the amended complaint.
has also filed two motions seeking the appointment of
counsel. (ECF Nos. 4 and 12). "A pro se litigant has no
statutory or constitutional right to have counsel appointed
in a civil case." Stevens v. Redwing, 146 F.3d
538, 546 (8th Cir. 1998). When determining whether to appoint
counsel for an indigent litigant, the Court considers factors
such as the complexity of the case, the litigant's
ability to investigate the facts, the existence of
conflicting testimony, and the litigant's ability to
present his claims. Id. After considering these
factors, the Court concludes that the appointment of counsel
is unwarranted at this time. Based upon the amended
complaint, it appears this case is factually and legally
straightforward, and there is no indication plaintiff will be
unable to investigate the facts or clearly present his
claims. In addition, the motions are premature, as the
defendants have yet to be served with process and discovery
has not begun. However, circumstances may change as the case
progresses. The Court will therefore deny the motions for the
appointment of counsel, without prejudice. If appropriate at
a later time, plaintiff may file a motion to appoint counsel
that addresses the relevant factors.
has also filed a motion titled "Motion for Production of
Video Evidence to Support 1983," in which plaintiff
seeks discovery materials. (ECF No. 11). This motion is also
premature, as neither defendant has been served with process
and this Court has yet to enter a Case Management Order to
establish discovery deadlines. The Court will therefore deny
the motion, without prejudice. Plaintiff will have the
opportunity to engage in discovery if and when a Case
Management Order is entered.
IT IS HEREBY ORDERED that plaintiffs
official capacity claims against defendants Joseph Hurst and
Steven Patterson are DISMISSED. A separate