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Pearson v. Gittemeier

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

October 25, 2019

FRANK GITTEMEIER, et al., Defendants.



         This 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.

         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 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).


         Plaintiff 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).

         On July 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.

         On July 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.

         On July 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).

         Shortly 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).

         The 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").

         The Amended Complaint

         Plaintiff 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.

         On 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 ...

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