United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on review of plaintiff s second
amended complaint pursuant to 28 U.S.C. § 1915. For the
reasons discussed below, the Court will direct the Clerk of
Court to issue process on defendants Frank Gittemeier and
Charles Peepers in their individual capacities.
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 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 (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).
is a pro se litigant currently incarcerated at the Moberly
Correctional Center (MCC) in Moberly, Missouri. On May 23,
2019, he filed a civil rights complaint pursuant to 42 U.S.C.
§ 1983, naming Frank Gittemeier and Charles Peepers as
defendants. (Docket No. 1). In the complaint, plaintiff
alleged that excessive force was used against him, and that
following this use of force, he was denied medical care.
(Docket No. 1 at 4). Defendants were sued in both their
official and individual capacities. (Docket No. 1 at 2-3).
Along with the complaint, plaintiff also filed a motion for
leave to proceed in forma pauperis and a motion to appoint
counsel. (Docket Nos. 2-3).
12, 2019, plaintiff filed a motion for leave to amend his
complaint. (Docket No. 4). In the motion, plaintiff stated
that he needed to amend his complaint to be "more
specific to the actual event itself, what led up to it, the
wrong committed to me, the [injury] and the relief that I am
seeking." However, plaintiff did not attach a proposed
amended complaint to the motion.
16, 2019, the Court granted plaintiffs motion for leave to
proceed in forma pauperis and assessed an initial partial
filing fee. (Docket No. 6). The Court also denied plaintiffs
motion for appointment of counsel. Finally, the Court denied
plaintiffs motion to amend because he had not submitted a
proposed amended complaint with the motion. The Court
directed the Clerk of Court to send plaintiff a copy of the
Court's prisoner civil rights form, and gave him thirty
days in which to file a motion to amend, along with a
proposed amended complaint.
25, 2019, before plaintiff received a copy of the Court's
July 16, 2019 order, plaintiff filed a motion to correct a
docket entry that incorrectly listed him as the defendant.
(Docket No. 7). Plaintiff also filed an amended complaint
(Docket No. 8), a motion for leave to proceed in forma
pauperis (Docket No. 9), and a motion to appoint counsel
(Docket No. 10).
thereafter, plaintiff received the Court's order of July
16, 2019, and filed a motion to amend on July 29, 2019.
(Docket No. 11). Along with the motion, he included a
proposed amended complaint. (Docket No. 12).
Court will treat the amended complaint received on July 29,
2019 as the operative complaint, superseding the previous
complaints. However, the Court has also reviewed the exhibits
attached to plaintiffs original complaint, as requested.
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").
brings this action pursuant to 42 U.S.C. § 1983. He
names Captain Frank Gittemeier and Sergeant Charles Peepers
as defendants. (Docket No. 12 at 2-3). Both men are
correctional officers at MCC. They are sued in their
individual capacities only.
January 13, 2019, while an inmate at MCC, plaintiff was
placed on suicide watch. (Docket No. 12 at 3). According to
plaintiff, he was "mentally broken and suicidal."
At around 4:00 p.m., Captain Gittemeier came to plaintiffs
cell to speak with him "regarding a discrepancy [he] had
with food service." Captain Gittemeier advised plaintiff
that he had heard plaintiffs name "over the radio
numerous times over the last three days," and that if he
heard plaintiffs name one more time, he was going to