Saling v. Pelton

• Decision Date: 03 February 2023
• Docket Number: 4:22-cv-00392 SRC
• Parties: JEREMY PHILLIP SALING, Plaintiff, v. STEVEN PELTON, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

JEREMY PHILLIP SALING, Plaintiff,
v.
STEVEN PELTON, et al., Defendants.

No. 4:22-cv-00392 SRC

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

February 3, 2023

MEMORANDUM AND ORDER

STEPHEN R. CLARK, CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on the motion of self-represented plaintiff Jeremy Phillip Saling, an inmate at Ozark Correctional Center, for leave to commence this civil action without prepayment of the required filing fee. Doc. 2. Having reviewed the motion and the financial information submitted in support, the Court has determined plaintiff lacks sufficient funds to pay the entire filing fee and assesses an initial partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1).

Having carefully reviewed plaintiff's complaint, pursuant to 28 U.S.C. § 1915(e)(2), the Court dismisses plaintiff's official-capacity claims and the majority of plaintiff's state-law claims, except for plaintiff's assault-and-battery claims against defendant Hunter Barnes. The Court additionally dismisses plaintiff's claims against defendants Steven Pelton, Scott Duck, Michael Delatorre, Kahild Ashkar, Tiara Byrd, Todd Sinclair, James Cross and Franklin County Sheriff's Department. The Court does, however, direct the Clerk of Court to issue process on plaintiff's individual-capacity excessive-force and state-law assault-and-battery claims against defendant Hunter Barnes.

I. 28 U.S.C. § 1915(b)(1)

Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his

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prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner's account, or (2) the average monthly balance in the prisoner's account for the prior sixmonth period. After payment of the initial partial filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding month's income credited to his account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these monthly payments to the Clerk of Court each time the amount in the prisoner's account exceeds $10.00, until the filing fee is fully paid. Id.

Plaintiff has not submitted a certified prison account statement. As a result, the Court will require plaintiff to pay an initial partial filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the Court with a certified copy of his prison account statement, the Court should assess an amount “that is reasonable, based on whatever information the court has about the prisoner's finances.”). If plaintiff is unable to pay the initial partial filing fee, he must submit a copy of his prison account statement in support of his claim.

II. 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 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).

“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.”

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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 555).

The 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 self-represented 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 in order to excuse mistakes by those who proceed without counsel, see McNeil v. United States, 508 U.S. 106, 113 (1993).

III. The Complaint

On April 4, 2022, plaintiff Jeremy Phillip Saling filed his complaint on Prisoner Civil Rights Complaint form pursuant to 42 U.S.C. § 1983. Doc. 1. At the time plaintiff filed his complaint he was incarcerated at Franklin County Detention Center in Union, Missouri. Plaintiff filed a change of address form in this action on June 3, 2022, indicating that he was transferred to Ozark Correctional Center in Fordland, Missouri. Doc. 6. All relevant issues in plaintiff's complaint took place at Franklin County Detention Center.

Plaintiff names the following as defendants in this action: Franklin County Sheriff Steven Pelton; Captain Scott Duck; Lieutenant Michael Delatorre; Sergeant Kahild Ashkar;

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Corporal Hunter Barnes; Deputy Tiara Byrd; Deputy Todd Sinclair; and Deputy James Cross. Also named as a defendant in the body of the complaint is the Franklin County Sheriff's Department. Defendants are sued in their individual and official capacities. It is not entirely clear whether plaintiff has intended to sue Deputies James Cross and Todd Sinclair in both their individual and official capacities, as there were mark-outs on the face of the complaint. The Court assumes plaintiff meant to sue defendants in both capacities just as he did with rest of the defendants.

Plaintiff alleges that on February 2, 2022, he heard several inmates talking about clogging their toilets and flooding the wing because they were upset about being “locked down” due to the COVID-19 pandemic. When Deputy Tiara Byrd came to collect lunch trays, plaintiff notified her that several inmates were discussing flooding the wing. He claims he told her that perhaps it “could be prevented.” Plaintiff claims that Deputy Byrd left the wing and came back with Sergeant Kahlid Ashkar, who already had his taser out when he approached plaintiff's cell door. Plaintiff states that Sergeant Ashkar started yelling at him immediately upon seeing him. Sergeant Ashkar told plaintiff that he should “take it up with the doctor” if he didn't like being locked down.” And he allegedly would not listen when plaintiff attempted to tell him he was “only trying to help.” When plaintiff and Sergeant Ashkar got into a verbal altercation, Sergeant Ashkar entered plaintiff's cell, pushed him back from the cell door and told him to “cuff up.”

Plaintiff asserts that Deputy Byrd grabbed one of plaintiff's hands and Sergeant Ashkar grabbed the other hand, while “attempting to use very painful wrist locks” to submit to restraints. Plaintiff admits that rather than submit to restraints he “crossed his arms,” and he told the deputies that he hadn't done anything wrong. As a result of the yelling within plaintiff's cell, Deputy James Cross came to assist. He told plaintiff, “Saling, it's not worth it. Just cuff up.”

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Plaintiff claims that at this point, he finally put his hands behind his back to submit to restraints, and he was escorted by Sergeant Ashkar and Deputy Byrd to padded cell #3.

In padded cell #3, Sergeant Ashkar instructed plaintiff to get on his knees in the back of the cell, with his hands handcuffed behind his back. Although plaintiff complied with the directive, he verbally responded, “Fu*k you, you're a fu*king bully who doesn't do sh*t but abuse his authority.” Plaintiff alleges that he was “yanked to his feet and began getting thrown around the room.” Plaintiff does not indicate who threw him; however, he claims he was struck in the face and “slammed into something.” Again, plaintiff fails to articulate which defendant struck him in the face. Nonetheless, he states that he suffered “multiple lacerations” on his face, a black eye, and damage to his eyeball.

Plaintiff alleges that at some point he lost consciousness, and when he awoke, he was laying face down on the ground, restrained by several unnamed officers, while another officer was placing leg restraints on him. He states that defendant Corporal Barnes pushed his head forcefully into the cell floor with his left hand, while using his right hand to jam his thumb into a pressure point under plaintiff's jaw. Plaintiff claims that Corporal Barnes applied more pressure at a different angle when plaintiff “screamed in pain” and called Barnes a “b*tch.”

Plaintiff was left in padded cell #3 fully restrained in hand and leg cuffs. He states that he began angrily yelling out the cell door at Sergeant Ashkar, to which Sergeant Ashkar responded, “Saling, nobody cares about what you've got to say! You're nothing but a fu*king snitch who tells on people to try to get out of trouble!” Plaintiff alleges that all of the inmates in booking and in the holding cells were able to hear Sergeant Ashkar's pronouncement that plaintiff was a snitch. He claims that Deputy Todd Sinclair drafted a report relating to this incident, but a “someone of higher rank” accessed the report and made changes to it...