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Barnett v. Shelton

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

January 13, 2020

BRANDON NICHOLAS BARNETT, Plaintiff,
v.
CHRISTOPHER SHELTON, et al., Defendants.

          MEMORANDUM AND ORDER

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on the motion of plaintiff Brandon Nicholas Barnett for leave to commence this civil action without prepayment of the required filing fee. (Docket No. 2). While incarcerated, and before filing the instant action, plaintiff brought three civil actions in federal court that were dismissed as frivolous, malicious, or for failure to state a claim. Accordingly, plaintiff's motion for leave to proceed in forma pauperis is subject to denial, unless plaintiff is under imminent danger of serious physical injury. For the reasons discussed below, the Court has determined that plaintiff's claims regarding the use of excessive force and failure to respond to grievances do not demonstrate that plaintiff is in imminent danger. However, the Court will direct plaintiff to file an amended complaint with regard to his deliberate indifference to dental care claim.

         The Complaint

         Plaintiff is a pro se litigant currently incarcerated at the Southeast Correctional Center (SECC) in Charleston, Missouri. He brings this action pursuant to 42 U.S.C. § 1983. In the complaint, he names the following thirteen defendants: Christopher Shelton; Nina Hill; Jesse May; Shaun Buhs; Rebecca Neal; James Watson; Jason Lewis; Terrance Fowler; Dr. Unknown Jackson; Dr. Unknown Goodhand; Larry Graham; Unknown Robertson; and Christopher Proffer. (Docket No. 1 at 2-6). Defendants are all sued in both their official and individual capacities.

         On January 24, 2017, plaintiff states that Correctional Officer Shelton placed him in the shower and sexually harassed him. (Docket No. 1 at 6). Specifically, plaintiff asserts that he covered the “chuckhole” with his towel so that he did not receive a violation for exposing himself. However, Officer Shelton allegedly told plaintiff to uncover the chuckhole, in order to observe plaintiff's genitals. Plaintiff told Officer Shelton that he was going to “file [a] PREA on him for sexual harassment.”[1]

         According to plaintiff, Officer Shelton became “hostile” when plaintiff said he was going to file a PREA complaint. Officer Shelton purportedly told plaintiff that if plaintiff did not “take it down, ” Officer Shelton would deny plaintiff his shower. Eventually, plaintiff got out of the shower and Officer Shelton escorted him back to his cell. As they were walking, Officer Shelton “was grabbing and squeezing [plaintiff's] arm, ” and also jerked and pulled him down the stairs. Plaintiff further states that Officer Shelton cursed at him and threatened to throw him down the stairs. (Docket No. 1 at 7). Officer Shelton also expressed displeasure that plaintiff had filed a PREA complaint “on [Officer Shelton's] friend.” Thereafter, plaintiff alleges that Officer Shelton slammed him on his face while he was in handcuffs, and then jumped on his back. Plaintiff states that he chipped his tooth and required four stitches.

         Before getting out of the shower, plaintiff requested that Correctional Officer Unknown Robertson escort plaintiff himself, because Officer Shelton was acting in a “hostile” manner. Officer Robertson did not take him out of the shower or escort him, but left that duty to Officer Shelton. Plaintiff further asserts that he told Officer Robertson three different times to call Correctional Officer Christopher Proffer so that plaintiff could file a PREA complaint, but that Robertson never did it.

         After the incident with Officer Shelton, plaintiff was taken to medical. While getting stitches, plaintiff encountered Officer Proffer. Plaintiff advised Officer Proffer that he wanted to file a PREA complaint and an offender abuse report. He also asked for three individuals to act as witnesses. Plaintiff states that Officer Proffer said “yes, ” but that he never filed the PREA complaint or the offender abuse report, and that he never secured the witnesses. He accuses Officer Proffer of covering up “a crime of assault.” Nurse Practitioner Nina Hill gave plaintiff four stitches. Plaintiff told her that his “jaw felt fractured/broken” and asked to be sent to the hospital for “proper testing and treatment.” Nurse Hill denied this request but told plaintiff she would order an x-ray the next day. Plaintiff alleges that Nurse Hill never x-rayed his jaw, despite him asking for over six months. As such, plaintiff states that his jaw “had to heal by itself, ” causing him pain and suffering. (Docket No. 1 at 7-8).

         On January 25, 2017, plaintiff asked Lieutenant Jesse May to file a PREA complaint and offender abuse report about the alleged assault that occurred while he was handcuffed. (Docket No. 1 at 8). Plaintiff also gave Lieutenant May his “bloody clothes” as evidence for the investigation. Lieutenant May filed the PREA complaint that plaintiff requested, but not the offender abuse report. Lieutenant May also replied to plaintiff's concerns about getting an x-ray by advising plaintiff that it was “a medical issue.” Plaintiff states that he filed an informal resolution request (IRR) with Caseworker Rebecca Neal. He asserts that he filed the IRR with Caseworker Neal because he had not received a response from his previous “IRR-grievance appeal” regarding his alleged assault. Plaintiff states that he did not receive an adequate response from Caseworker Neal, thereby prolonging his injuries. Similarly, plaintiff claims that Grievance Coordinator Shaun Buhs has prolonged his injuries by failing to respond to his first and second grievance “in order to cover up [a] crime.”

         Plaintiff states that he advised Caseworker James Watson that Grievance 18-303 was overdue. (Docket No. 1 at 9). He also told Caseworker Watson about two more issues, but only one of those issues was addressed. Caseworker Watson then gave him a grievance form to use as a grievance appeal, because he had no more grievance appeal forms. Plaintiff filled out the form as Caseworker Watson directed, but the warden did not accept it because it was filed late. This forced plaintiff to rewrite the grievance. Plaintiff states that if Caseworker Watson had explained the misunderstanding, he would not have had to rewrite the grievance.

         Plaintiff filed a medical IRR with Medical Grievance Coordinator Larry Graham. He alleges that he received no response. Plaintiff further states that he received treatment for his broken tooth on September 1, 2017, when the dentist placed a “fake tooth on it.” This fell out approximately a month later. Plaintiff claims that Medical Grievance Coordinator Graham prolonged his treatment by not responding to his grievance.

         On September 1, 2017, Dr. Terrance Fowler treated plaintiff's chipped tooth by the placement of an “artificial tooth.” However, the artificial tooth fell off a month later. Plaintiff states that he has “severe pain” when he eats, drinks, or when air hits the tooth. He alleges that he has experienced this pain from September 1, 2017 to the present day. He also claims that he has complained about this by filing multiple health service requests. He has been told that he is on a waiting list, but has not been seen in over a year. Plaintiff states that he is “still in imminent danger due to tooth pain [and] problems” with his chipped tooth. (Docket No. 1 at 10).

         Plaintiff states that from January 24, 2017 to the present, Warden Jason Lewis has known of all the complaints and issues mentioned in the complaint. He alleges that Warden Lewis has “failed to correct” any wrongdoing by SECC staff, which has prolonged his injuries.

         Plaintiff seeks total damages in the amount of $11, 800, 000. (Docket No. 1 at 13). He is also requesting treatment for his chipped tooth.

         Discussion

         Plaintiff is an inmate at SECC. He seeks leave to commence this 42 U.S.C. § 1983 action without prepayment of the required filing fee. However, plaintiff has filed three previous cases that were dismissed on the basis of frivolity, maliciousness, or for failure to state a claim. As such, his motion to proceed in forma pauperis is subject ...


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