# Vargas v. Minor

> District Court, E.D. Missouri · May 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10233040

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** May 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10233040

## How later opinions describe it (automated extraction)

- explaining that to claim a due process violation, plaintiff has to be deprived of either life, liberty, or property, otherwise “it does not matter whether one has received due process or not”
- 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”
- stating that a “plaintiff who sues public employees in their official, rather than individual, capacities sues only the public employer”
- stating that “prison officials violate the Eighth Amendment only when they exhibit a deliberate or callous indifference to an inmate’s safety”
- stating that a “State is not a person under § 1983”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

DENNIS LEE VARGAS, )
)
Plaintiff, )
)
v. ) No. 2:19-cv-00084-JCH
)
DEAN MINOR, et al., )
)
)
Defendants. )

MEMORANDUM AND ORDER
This matter comes before the Court on the motion of plaintiff Dennis Lee Vargas for leave
to commence this civil action without prepayment of the required filing fee. (Docket No. 2).
Having reviewed the motion and the financial information submitted in support, the Court has
determined that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial
partial filing fee of $22.31. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed
below, this action will be dismissed without prejudice for failure to state a claim. See 28 U.S.C. §
1915(e)(2)(B).
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 or her
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 six-month
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 the prisoner’s 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.
In support of his motion for leave to proceed in forma pauperis, plaintiff has submitted a
copy of his certified inmate account statement. (Docket No. 3). The account statement shows an

average monthly deposit of $111.57. The Court will therefore assess an initial partial filing fee of
$22.31, which is 20 percent of plaintiff’s average monthly deposit.
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
plaintiff’s 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 (8th

Cir. 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).
The Complaint
Plaintiff is a pro se litigant who is currently incarcerated at the Moberly Correctional Center
in Moberly, Missouri. He brings this action pursuant to 42 U.S.C. § 1983. His complaint names
the following defendants: Warden Dean Minor; Vocational Enterprise Supervisor (VES) Mary
Teague; VES Frank Miller; and VES Danny Benn.1 (Docket No. 1 at 2-3).

On October 2, 2018, plaintiff was fired from his laundry job for a theft violation. (Docket
No. 1 at 4). According to a grievance appeal response attached as an exhibit, plaintiff was found
to have “contracted hospital items, such as washcloths and blankets in [his] assigned living area
that came out of the baskets/carts in [his] assigned work area in the MCC Laundry.” (Docket No.
1-1 at 3).2 As such, plaintiff was removed from his work assignment.

1 In the section of the form complaint to identify the defendants, plaintiff states that defendant Benn’s surname is
actually “Been.” For the sake of clarity, the Court will use the spelling that is contained in the case caption.
2 The Court will treat plaintiff’s attachments as part of the pleadings. 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”).
Plaintiff alleges that Warden Minor allowed VES Teague to send out an interoffice
communication “to the entire prison” that told everyone he was a thief. (Docket No. 1 at 4). He
states that Warden Minor failed to provide due process, “failed to send out a correction memo to
correct” Teague’s interoffice communication, and “slandered [his] name by calling [him] a
[thief].” Plaintiff further states that Warden Minor told him that he needed “to learn how to speak,”

and to take some classes, after which Warden Minor would determine if he could have a job.
With regard to VES Teague, plaintiff claims that Teague was the person who fired him
from his job in the laundry. This caused him to lose the ability to provide for himself, the “loss of
sponsorship for the Cancer Children at St. Jude[’]s,” and the “loss of [his] Story Link for [his]
Grandchildren.” (Docket No. 1 at 5). Further, plaintiff asserts that Teague slandered him by
sending out an interoffice communication before he was given due process. He also states that
Teague defamed him and violated the Prison Rape Elimination Act by telling other inmates that
he was a homosexual. (Docket No. 1 at 4-5).
With regard to VES Miller, plaintiff states that Miller threatened to fire him when plaintiff

confronted Miller about allowing an inmate to leave without clocking the inmate out on the
computer. (Docket No. 1 at 5). According to plaintiff, Miller told him he would have to find a job
somewhere else, and that he would never work for Vocational Enterprise again. Plaintiff states that
Miller failed to do his job in a professional manner, and that Miller’s action made plaintiff “a
[t]arget to be fired.”
Finally, with regard to VES Benn, plaintiff states that Benn is VES Teague’s supervisor.
(Docket No. 1 at 6). Plaintiff alleges that Benn “allowed” Teague to send out an interoffice
communication that deprived him of due process and slandered his name. Plaintiff also asserts that
Benn failed to “address” Teague, allowed her to continue unprofessional acts, and “failed to
uphold” his right to work after he was found not guilty.
As a result of defendants’ actions, plaintiff states that he has suffered mental trauma and
emotional distress. (Docket No. 1 at 4-6). He seeks replacement of his job, lost wages based on a
sixty-hour work week, and $5 million in damages for mental trauma, slander, and defamation.

(Docket No. 1 at 7).
Discussion
Plaintiff is a pro se litigant who brings this action pursuant to 42 U.S.C. § 1983 against
defendants Minor, Teague, Miller, and Benn. For the reasons discussed below, this action must be
dismissed without prejudice for failure to state a claim.
A. Official Capacity Claims
Plaintiff’s official capacity claims against defendants Minor, Teague, Miller, and Benn
must be dismissed. In an official capacity claim against an individual, the claim is actually “against
the governmental entity itself.” See White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017). Thus,

a “suit against a public employee in his or her official capacity is merely a suit against the public
employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). See also
Brewington v. Keener, 902 F.3d 796, 800 (8th Cir. 2018) (explaining that official capacity suit
against sheriff and his deputy “must be treated as a suit against the County”); Kelly v. City of
Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016) (stating that a “plaintiff who sues public
employees in their official, rather than individual, capacities sues only the public employer”); and
Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (stating that a “suit against a public
official in his official capacity is actually a suit against the entity for which the official is an agent”).
Here, defendants are all alleged to be employees of Moberly Correctional Center, a penal
institution of the Missouri Department of Corrections, which is an agency of the State of Missouri.
As such, plaintiff’s official capacity claims are actually claims against the State of Missouri itself.
“Section 1983 provides for an action against a ‘person’ for a violation, under color of law,
of another’s civil rights.” McLean v. Gordon, 548 F.3d 613, 618 (8th Cir. 2008). See also Deretich

v. Office of Admin. Hearings, 798 F.2d 1147, 1154 (8th Cir. 1986) (stating that “[§] 1983 provides
a cause of action against persons only”). However, “neither a State nor its officials acting in their
official capacity are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58,
71 (1989). See also Calzone v. Hawley, 866 F.3d 866, 872 (8th Cir. 2017) (stating that a “State is
not a person under § 1983”); and Kruger v. Nebraska, 820 F.3d 295, 301 (8th Cir. 2016) (stating
that “a state is not a person for purposes of a claim for money damages under § 1983”). Thus, to
the extent that plaintiff is seeking monetary damages, his official capacity claims against the State
of Missouri must be dismissed.
To the extent that plaintiff is seeking injunctive relief, his official capacity claims are still

subject to dismissal. In order to prevail on a claim against a governmental entity, a plaintiff must
establish the entity’s liability for the alleged conduct. See Kelly, 813 F.3d at 1075. Such liability
may attach if the constitutional violation resulted from (1) an official policy, (2) an unofficial
custom, or (3) a deliberately indifferent failure to train or supervise. See Mick v. Raines, 883 F.3d
1075, 1079 (8th Cir. 2018). See also Marsh v. Phelps Cty., 902 F.3d 745, 751 (8th Cir. 2018)
(recognizing “claims challenging an unconstitutional policy or custom, or those based on a theory
of inadequate training, which is an extension of the same”). Here, plaintiff has alleged no facts
whatsoever to support the proposition that his constitutional rights were violated because of an
official policy or unofficial custom on the part of the State of Missouri, or that Missouri was
deliberately indifferent in training or supervising its employees. Therefore, to the extent that
plaintiff is seeking prospective injunctive relief, his official capacity claims must be dismissed.
B. Individual Capacity Claims
Plaintiff’s individual capacity claims against defendants Minor, Teague, Miller, and Benn
must also be dismissed. Restated, plaintiff alleges that his right to due process was violated when

he was fired from his job in the laundry; that he was slandered and defamed; and that he was
threatened.
i. Loss of Prison Job Claims Against Teague, Benn, and Minor
Plaintiff alleges that defendants Teague, Benn, and Minor violated his right to due process
when he was terminated from his prison job. In order to prevail on a Fourteenth Amendment due
process claim, a plaintiff must first demonstrate that he or she was deprived of life, liberty, or
property by government action. Phillips v. Norris, 320 F.3d 844, 846 (8th Cir. 2003). See also
Singleton v. Cecil, 155 F.3d 983, 987 (8th Cir. 1998) (explaining that to claim a due process
violation, plaintiff has to be deprived of either life, liberty, or property, otherwise “it does not

matter whether one has received due process or not”). As life or property is not at issue in this
case, plaintiff must identify a liberty interest to sustain a due process claim. See Phillips, 320 F.3d
at 847. See also Peck v. Hoff, 660 F.2d 371, 373 (8th Cir. 1981) (stating that in order to be entitled
to due process under the Fourteenth Amendment, there must first be some entitlement, right, or
liberty interest protected under federal or state law).
The United States Supreme Court has determined that prisoners have a protected liberty
interest in avoiding conditions of confinement that impose an “atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,
484 (1995). However, an inmate’s loss of employment does not amount “to an atypical and
significant hardship” for purposes of the due process clause. See Smith v. McKinney, 2020 WL
1522492, at *3, *6 (8th Cir. 2020). That is, “[i]nmates have no constitutional entitlement to tenure
in prison jobs.” Lyon v. Farrier, 727 F.2d 766, 769 (8th Cir. 1984). See also Lomholt v. Holder,
287 F.3d 683, 684 (2002) (stating that inmate “had no constitutional right to a particular prison
job”); Mitchell v. Kirk, 20 F.3d 936, 938 (8th Cir. 1994) (same); and Flittie v. Solem, 827 F.2d 276,

279 (8th Cir. 1987) (same).
Here, plaintiff alleges that VES Teague fired him from his prison job in the laundry. He
further accuses Teague of using theft allegations to keep him from getting a job, and of failing to
replace his job. Plaintiff claims that VES Benn is liable because he failed to address Teague’s
actions and uphold plaintiff’s right to work. Finally, plaintiff asserts that Warden Minor is liable
because he did not address Teague and correct her actions.
Plaintiff’s job-related claims are premised on his contention that he has a constitutional
right to his prison employment. He asserts that defendants’ allegedly-wrongful actions in causing
him to lose his job, and their later failure to replace that job, are violations of his right to due

process. As discussed above, however, plaintiff does not have a constitutional right to a particular
prison job. Specifically, loss of prison employment does not amount to an “atypical and significant
hardship” for purposes of establishing a protectible liberty interest under the Fourteenth
Amendment. Because plaintiff has not identified a liberty interest, his job-related due process
claims must fail. Therefore, plaintiff’s individual capacity claims against defendants Teague,
Benn, and Minor regarding his termination of employment must be dismissed.
ii. Slander and Defamation Claims
Plaintiff alleges that defendants Teague, Benn, Miller, and Minor all defamed or slandered
him. An inmate cannot recover damages for defamation under 42 U.S.C. § 1983 “because a
defamed person has not been deprived of any right, privilege or immunity secured to him by the
Federal Constitution or laws of the United States.” Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th
Cir. 1975). Furthermore, for purposes of § 1983, name calling is not a constitutional violation.
Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir. 1985).
Here, plaintiff claims that VES Teague defamed him by sending an interoffice

communication regarding his termination for theft, before he “was given the Right to Due
Process.” This caused plaintiff to be labeled as a thief. Plaintiff further claims that Teague told
other inmates he was a homosexual. With regard to Warden Minor, plaintiff alleges that Minor
slandered him by calling him a thief, and failed to correct the interoffice communication sent by
Teague. Likewise, plaintiff accuses VES Benn of failing to address Teague after Teague sent an
interoffice communication concerning plaintiff’s termination for theft. Finally, plaintiff states that
VES Miller also defamed his character and slandered him, though he provides no details.
As discussed above, defamation is not a constitutional violation. Thus, plaintiff’s claims
concerning the interoffice communication that purportedly labeled him a thief are not actionable

under § 1983. Further, plaintiff’s allegation against VES Teague for calling him a homosexual
amount to name calling, which is also not a constitutional violation.3 “To state a claim under
section 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws
of the United States.” Wong v. Minnesota Dep’t of Human Servs., 820 F.3d 922, 934 (8th Cir.
2016). Plaintiff’s factual assertions regarding the defamation of his character, slander, and name
calling do not establish such a violation. Therefore, plaintiff’s claims against defendants Teague,
Benn, Miller, and Minor regarding defamation and name calling must be dismissed.

3 The Court notes that plaintiff presents no allegations to the effect that VES Teague’s words placed him in danger,
potentially giving rise to an Eighth Amendment violation. See Patterson v. Kelley, 902 F.3d 845, 851 (8th Cir. 2018)
(stating that “prison officials violate the Eighth Amendment only when they exhibit a deliberate or callous indifference
to an inmate’s safety”).
iii. Verbal Threat Claim Against Miller
Plaintiff alleges that VES Miller threatened to fire him after plaintiff confronted Miller
about Miller’s actions on the job. “Generally, mere verbal threats made by a state-actor do not
constitute a § 1983 claim.” Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992). In other
words, fear or emotional injury resulting “solely from verbal harassment or idle threats is generally

not sufficient to constitute an invasion of an identified liberty interest.” King v. Olmsted Cty., 117
F.3d 1065, 1067 (8th Cir. 1997).
Here, there is no indication that Miller’s alleged threat contained any violence or force, so
that it “amounted to an abuse of official power that shocks the conscience.” See Turner v. Mull,
784 F.3d 485, 492 (8th Cir. 2015). There is also no indication that Miller engaged in ongoing verbal
harassment or threatening behavior. Instead, plaintiff claims only that Miller told him he would be
finding a job “somewhere else,” and that plaintiff would never work for Vocational Enterprise
again. This is not sufficient to constitute an invasion of an identified liberty interest, especially as
plaintiff has no underlying constitutional right to a prison job. Therefore, plaintiff’s claim against

Miller regarding the making of a threatening statement must be dismissed.
C. Preservice Dismissal
Pursuant to 28 U.S.C. § 1915, the Court is required to dismiss an action filed in forma
pauperis “at any time” the Court determines that the action “fails to state a claim upon which relief
may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). In this case, plaintiff’s official capacity claims
against defendants are subject to dismissal because the claims are actually against the State of
Missouri itself, which is not a “person” for a 42 U.S.C. § 1983 claim for money damages. Further,
to the extent that plaintiff is seeking prospective injunctive relief, he has not demonstrated the State
of Missouri’s liability by showing an unconstitutional policy, custom, or failure to train. Plaintiff
has also failed to state individual capacity claims against any of the defendants, because his
allegations regarding the loss of his prison job, the defamation of his character, and the supposed
verbal threats he received fail to implicate his constitutional rights. For these reasons, the Court
will dismiss this action without prejudice for failure to state a claim.
Accordingly

IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis
(Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $22.31
within twenty-one (21) days of the date of this order. Plaintiff is instructed to make his remittance
payable to “Clerk, United States District Court,” and to include upon it: (1) his name; (2) his inmate
registration number; (3) the case number; and (4) the statement that the remittance is for an original
proceeding.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice for
failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B). A separate order of dismissal will be entered

herewith.
IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in
good faith.
Dated this 11th day of May, 2020.

/s/ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10233040. Public record. Not legal advice.