Howell v. Kennon
| Decision Date | 07 March 2023 |
| Docket Number | 4:22-CV-218 PLC |
| Parties | ALEXANDER HOWELL, Plaintiff, v. JIMMY KENNON, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court upon review of plaintiff Alexander Howell's second amended complaint.[1] [ECF No. 23]. Also before the Court is plaintiff's second motion for leave to commence this action without payment of the required filing fee, as well as her fourth motion for appointment of counsel. [ECF Nos. 24 and 25]. Because plaintiff has already been granted leave to proceed in forma pauperis, her second request for leave to proceed in forma pauperis will be denied as moot. Her fourth request for counsel will be denied at this time. After review of the second amended complaint the Court will require plaintiff to submit a third amended complaint within twenty-one (21) days of the date of this Memorandum and Order. Plaintiff's failure to comply with the Court's Order in all relevant areas will result in a dismissal of this action, without prejudice.
Plaintiff Alexander Howell, a transgendered inmate at Potosi Correctional Center, filed the instant civil rights action pursuant to 42 U.S.C. § 1983 on February 22, 2022. [ECF No. 1]. In her original complaint, plaintiff complained that she had been sexually assaulted at Eastern Reception Diagnostic and Correctional Center (ERDCC) in December of 2021 by another inmate. Because plaintiff's allegations were contained throughout both her complaint and multiple supplements, on May 4, 2022, the Court ordered plaintiff to amend her pleading in one comprehensive amended complaint. [ECF No. 18]. Plaintiff was specifically informed that the Court would not accept supplemental pleadings, as such pleadings are not accepted under the Federal Rules of Civil Procedure. See Fed.R.Civ.P.7(a). Plaintiff was also told that the Court would strike all affidavits provided by plaintiff from other inmates if attached to her amended pleading. [ECF No. 18, p.6, FN.4].
On May 27, 2022, plaintiff submitted an amended complaint to the Court. [ECF No. 19]. Before the Court could review plaintiff's pleading for frivolousness, maliciousness or for failure to state a claim upon which relief could be granted, pursuant to 28 U.S.C. § 1915, plaintiff submitted her second amended complaint on December 8, 2022. [ECF No. 23].
This Court is required to review a complaint filed in forma pauperis and must dismiss it if it is frivolous or malicious fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). 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).
A claim is facially plausible 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) (citing Twombly, 550 U.S at 556). Although a plaintiff need not allege facts in painstaking detail, the facts alleged “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. 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 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 555).
This Court liberally construes complaints filed by laypeople. Estelle v. Gamble, 429 U.S. 97, 106 (1976). “Liberal construction” 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 that, 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).
In her second amended complaint, filed on December 8, 2022 plaintiff alleges a multitude of violations of her civil rights occurring at three separate Missouri Department of Corrections (MDOC) institutions. Such pleading practices are in violation of Federal Rules of Civil Procedure 18 and 20. As a result, plaintiff will be required to amend her complaint on a court-form within twenty-one (21) days of the date of this Memorandum and Order.
A. Plaintiff Has Brought a Multitude of Allegations from Three Separate MDOC Institutions
In a one-hundred-six-page (106) second amended complaint, plaintiff sues at total of forty-four (44) defendants in twenty-one (21) separate counts for relief.[2] She sues nine (9) individuals at Eastern Reception Diagnostic and Correctional Center (ERDCC) in Bonne Terre, Missouri.[3]She sues eleven (11) individuals at Algoa Correctional Center (ACC) in Jefferson City, Missouri.[4]Additionally, plaintiff sues twenty-one (21) individuals at Potosi Correctional Center (PCC) in Mineral Point, Missouri.[5] Last, plaintiff sues three (3) individuals from the home office of the Missouri Department of Corrections (MDOC), as well as Governor Michael Parsons.[6]
1. ERDCC Claims for Relief
Plaintiff, a transgendered inmate, alleges that she was sexually assaulted during her incarceration at ERDCC in December of 2021 by another inmate. [ECF No. 23, p. 31]. She claims that after she was assaulted, defendant Dennis Coleman, the Control Officer, failed to respond to her attempts to reach out to officers by pressing the emergency button in her cell. When Officer Jimmy Kennon came by her cell almost an hour after the assault and asked why she kept pressing the emergency button, he asked, “PC?[7] Plaintiff purportedly answered, “No, it's personal.” She claims she was too scared to tell defendant Kennon about the assault, due to “fear for [her] safety.” Kennon allegedly stated, “well,” and walked away. Id.
When plaintiff attempted to file a PREA[8] complaint with defendant Dennis Coleman at the control center, approximately fifteen minutes after her conversation with Officer Kennon, she claims Officer Coleman was not receptive to her claims. She asserts that she first told Coleman she needed assistance because she was “raped.” Id. at 32-33. Coleman allegedly told plaintiff he was busy and disregarded plaintiff. Plaintiff went to the dayroom to try to contact another officer, “but instead changed [her] mind, and she went back to again try to file a PREA report with Officer Coleman.” When she told Officer Coleman, the second time that she needed to file a PREA, he told her, “If you keep fucking with me [I'm gonna] put you in the hole.” After walking to the dayroom and back, plaintiff then asked Coleman if she could move cells. She was told no. However, Coleman later called plaintiff over to the control center and told plaintiff that she could move to cell 7D-109. Id. at 33. She claims that defendant Coleman not only failed to follow PREA Guidelines, but also failed to follow the MDOC Transgender Housing Policy Guidelines. Plaintiff states that she filed an Informal Resolution Request (IRR) on December 30, 2021, relating to defendant Kennon's and Coleman's behavior of ignoring the emergency call button. She filed a second IRR on January 14, 2022, against defendant Coleman for purported retaliation for “prevent[ing] her from filing a PREA complaint and threatening to write [her] up if she continued to bother him.” Id. at 80-81.
Plaintiff claims she initially had no issues with her new cellmate until the middle of the night on December 17, 2021. At that time, she awoke to her cellmate groping her privates and rubbing her face. That morning, she told Unknown Caseworker, who was performing “Orientation” and playing a PREA video for the inmates, that she had been sexually assaulted by her cellmate. Unknown Lieutenant was dispatched to the Caseworker's Office, where plaintiff was directed to write a PREA Statement. Id. at 33-35, 79. Plaintiff was escorted to medical, submitted to a rape exam by an unidentified nurse and was then escorted to a new cell, 7A-117 in the TASC Unit.[9]
Plaintiff alleges that she was in the TASC Unit for a week, where she claims that “she suffered tremendously.” Id. at 50-51. She asserts that the bunks were “rusted and flaking” in TASC, and there were mice in the Unit. Plaintiff asserts that although inmates were given cleaning supplies to clean the TASC Unit, their cleaning time was “short.” Plaintiff takes issue with the fact that showers in the TASC Unit were only every three days, and “food was often served cold.” Plaintiff also complains that “inmates are not allowed to use razors in level 5 facilities' segregation units,” and they are only given haircuts once per month. Las...
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