Sullivan v. MOSOP

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JOHN J. SULLIVAN, )

)

Plaintiff, )

)

v. ) No. 4:19-CV-2623-PLC

)

MOSOP, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff John J. Sullivan (Missouri

inmate registration number 1313206) for leave to commence this civil action without prepayment

of the filing fee. ECF No. 2. While incarcerated, plaintiff has brought more than three civil actions

in federal court that were dismissed as frivolous, malicious, or for failure to state a claim.

Accordingly, for the reasons discussed below, the Court will deny plaintiff’s motion for leave to

proceed in forma pauperis and dismiss plaintiff’s complaint without prejudice.

The Complaint

Plaintiff is a self-represented litigant currently incarcerated at the Farmington Correctional

Center (“FCC”). Plaintiff brings this action pursuant to 42 U.S.C. § 1983, against MOSOP

(Missouri Sex Offender Program); Probation and Parole; Terri Lawson (Warden); the Missouri

Department of Corrections (“MDOC”); and the Missouri Parole Board. The complaint is silent as

to whether defendant Terri Lawson is being sued in his official or individual capacity.1

1 Where a complaint is silent about the capacity in which [plaintiff] is suing defendant, [a district

court must] interpret the complaint as including only official-capacity claims. Egerdahl v. Hibbing

Community College, 72 F.3d 615, 619 (8th Cir.1995); Nix v. Norman, 879 F.2d 429, 431 (8th Cir.

1989).

Plaintiff’s allegations are difficult to decipher. Plaintiff states on August 31, 2017 he “went

in front of the Probation and Parole Board” because he was eligible for release. Plaintiff alleges

that on July 3, 2018 he was scheduled to begin a sex offender program which violated his

constitutional rights because participation meant he was admitting guilt. Plaintiff states he was

told that if he did not sign a paper then his personal possessions would be taken from him. Plaintiff

does not describe the content of the document or identify who requested his signature. Plaintiff

complains about his living conditions stating that he “get[s] threatened almost every day,” “called

names,” and is forced to “live around people dieing [sic] of AIDS and Hep C.” Lastly, plaintiff

alleges that on several occasions between 2018 and 2019 he received inadequate medical care for

a stomach issue, cellulitis, COPD, and a blood clot in his left leg. Plaintiff does not allege who

allegedly deprived plaintiff of medical care. For relief, plaintiff seeks $17 million in damages.

Plaintiff has filed two supplements to his complaint. ECF. Nos. 6, 8. The supplements

include two letters to the Court repeating the allegations in his complaint and a docket sheet from

an unrelated case that plaintiff is not a party.

Discussion

Plaintiff seeks leave to commence this § 1983 action without prepayment of the required

filing fee. Plaintiff has had more than three previous cases dismissed on the basis of frivolity or

failure to state a claim. As such, his instant motion to proceed in forma pauperis will be denied

and his case will be dismissed without prejudice. Additionally, this action will be dismissed for

failure to state a claim. See 28 U.S.C. § 1915(e).

A. Three Strikes Rule

The Prison Litigation Reform Act of 1996 (“PLRA”) enacted what is commonly known as

the “three strikes” provision of 28 U.S.C. § 1915(g). Orr v. Clements, 688 F.3d 463, 464 (8th Cir.

2012). Under 28 U.S.C. § 1915(g), a prisoner’s ability to obtain in forma pauperis status is limited

if he has filed at least three actions that have been dismissed as frivolous, malicious, or for failure

to state a claim. Section 1915(g) provides in relevant part:

In no event shall a prisoner bring a civil action … under this section

if the prisoner has, on three or more prior occasions, while

incarcerated or detained in any facility, brought an action … in a

court of the United States that was dismissed on the grounds that it

is frivolous, malicious, or fails to state a claim upon which relief

may be granted, unless the prisoner is under imminent danger of

serious physical injury.

28 U.S.C. § 1915(g). This section does not apply unless the inmate litigant has three strikes at the

time he files his lawsuit or appeal. Campbell v. Davenport Police Dep’t, 471 F.3d 952, 952 (8th

Cir. 2006). Prisoners who have had three previous civil lawsuits or appeals dismissed as frivolous,

malicious, or for failure to state a claim must prepay the entire filing fee. Lyon v. Krol, 127 F.3d

763, 764 (8th Cir. 1997).

B. Plaintiff’s Previous “Strikes”

Review of this Court’s files reveal that plaintiff has accumulated more than three strikes.

See Sullivan v. Harris, et al., No. 2:18-CV-4203-BCW (W.D. Mo. Sept. 28, 2018) (dismissed Oct.

3, 2018 under 28 U.S.C. § 1915(e)(2)(B) for being legally frivolous and failure to state a claim);

Sullivan v. Bates County Circuit Court, et al., No. 4:18-CV-861-GAF (W.D. Mo. Oct. 29, 2018)

(dismissed Oct. 30, 2018 under 28 U.S.C. § 1915(e)(2)(B) for same reasons); Sullivan v. Harris,

et al., 2:19-CV-4039-BCW (W.D. Mo. Feb. 22, 2019) (dismissed Mar. 19, 2019 under 28 U.S.C.

§ 1915(e)(2)(B) for same reasons); and Sullivan v. State of Missouri, et al., 4:18-CV-1816-JMB

(E.D. Mo. Oct. 23, 2018) (dismissed Mar. 14, 2019 under 28 U.S.C. § 1915(e)(2)(B) for same

reasons after being given the opportunity to file two amended complaints). Since the filing of this

instant lawsuit on September 24, 2019, three additional cases have been dismissed. See Sullivan

v. Cofer, et al., 4:19-CV-1504-PLC (E.D. Mo. May 23, 2019) (dismissed Feb. 25, 2020 under 28

U.S.C. § 1915(e)(2)(B) for failure to state a claim); Sullivan v. Austin, et al., 4:19-CV-2044-DDN

(E.D. Mo. July 18, 2019) (dismissed Feb. 24, 2020 under 28 U.S.C. § 1915(e)(2)(B) for same

reason); and Sullivan v. State of Missouri, et al., 4:19-CV-3184-NAB (E.D. Mo. Dec. 3, 2019)

(dismissed May 14, 2020 under the three strikes provision of 28 U.S.C. § 1915(g)).2

As a result, this Court is unable to permit plaintiff to proceed in forma pauperis in this

matter unless he “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); see

also Higgins v. Carpenter, 258 F.3d 797, 800 (8th Cir. 2001). An otherwise ineligible prisoner

must be in imminent danger at the time of filing the complaint; allegations of past imminent danger

are insufficient to trigger the exception to § 1915(g). Ashley v. Dilworth, 147 F.3d 715, 717 (8th

Cir. 1998).

Plaintiff does not allege that he is in imminent danger. Many of his claims relate to his

belief that he had an unfair trial and he should not be required to participate in a state-run sex

offender program. The remainder of plaintiff’s claims relate to his dissatisfaction with having to

be housed with inmates who have been diagnosed with AIDS or Hepatitis C and complaints that

the medical treatment he received in 2018 and 2019 at an unidentified location by unknown

individuals was inadequate. While plaintiff states he “hurts all the time,” his allegations do not

constitute imminent danger of serious physical injury. Plaintiff has thus failed to demonstrate that

the exception to the three strikes provision in § 1915(g) is applicable to him. Therefore, the Court

will deny plaintiff’s motion to proceed in forma pauperis and will dismiss this action without

prejudice.

2 Plaintiff currently has one other pending case in this Court, Sullivan v. State of Missouri, et al.,

4:19-CV-3139-JMB (E.D. Mo. Nov. 22, 2019), in which he has been permitted to file an amended

complaint.

C. 28 U.S.C. § 1915(e)

In addition to being subject to dismissal under the three strikes rule, plaintiff’s complaint

does not survive initial review under 28 U.S.C. § 1915(e)(2). Under 28 U.S.C. § 1915(e), 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.

Having carefully reviewed and liberally construed the complaint, the Court concludes

plaintiff’s claims against all named defendants in this action are not cognizable. First, plaintiff’s

claim against Warden Terri Lawson in his official capacity must be dismissed for failure to state a

claim. Lawson is an employee at FCC, an MDOC facility. Naming a government official in his

or her official capacity is the equivalent of naming the government entity that employs the official,

in this case the State of Missouri. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).

However, “neither a State nor its officials acting in their official capacity are ‘persons’ under §

1983.”

Even if plaintiff brought his claim against Lawson in his individual capacity, it would still

not survive initial review. Plaintiff does not allege that Lawson personally participated in any

violation of plaintiff’s constitutional rights. To state a claim under § 1983, plaintiff must plead

that each defendant “personally violated [his] constitutional rights.” Jackson v. Nixon, 747 F.3d

537, 543 (8th Cir. 2014) (citing Iqbal, 556 U.S. at 676). It is well established that the doctrine

of respondeat superior does not apply in § 1983 suits. See Iqbal, 556 U.S. at 676; Beaulieu v.

Ludeman, 690 F.3d 1017, 1030 (8th Cir. 2012) (“supervisors . . . . cannot be held vicariously liable

under § 1983 for the actions of a subordinate”); and Glick v. Sargent, 696 F.2d 413, 415 (8th Cir.

1983) (warden must play a personal role in the disciplinary process; he cannot be held liable for

the outcome of the process). Additionally, “a general responsibility for supervising the operations

of a prison is insufficient to establish the personal involvement required to support

liability.” Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997).

The complaint also fails to state a claim against the remaining defendant state agencies,

MOSOP, Probation and Parole, the MDOC, and the Missouri Parole Board, because they are not

entities subject to suit under § 1983. Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy

Corp., 948 F.2d 1084, 1086 (8th Cir.1991) (agency exercising state power is not a “person” subject

to § 1983 suit). “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”); Calzone v. Hawley, 866 F.3d 866, 872 (8th Cir.

2017) (a “State is not a person under § 1983”); and Kruger v. Nebraska, 820 F.3d 295, 301 (8th

Cir. 2016) (“a state is not a person for purposes of a claim for money damages under § 1983”).

Moreover, to any extent plaintiff is attempting to argue that the MDOC violated his

constitutional rights by requiring him to participate in MOSOP while he is serving a sentence for

statutory sodomy, fails to state a claim. “The MDOC is authorized to utilize prison institutional

programs, such as MOSOP, in its ongoing efforts to rehabilitate those committed to its custody.”

Oldcroft v. Missouri Bd. of Prob. & Parole, 2012 WL 1205119, at *3 (E.D. Mo. Apr. 11, 2012).

Further, it is within the Probation and Parole Board’s authority to revoke a conditional release date,

pending an inmate’s completion of MOSOP. See id. “[A]n inmate does not have a

constitutionally-protected liberty interest in the possibility of parole, and [the United States Court

of Appeals for the Eighth Circuit] has held that the Missouri parole statutes ‘create no liberty

interest’ under state law in the parole board’s discretionary decisions.” Id. (quoting Adams v.

Agniel, 405 F.3d 643, 645 (8th Cir. 2005)).

Thus, upon initial review, the Court finds that the complaint here is subject to dismissal

under the three strikes rule, 28 U.S.C. § 1915(g), and also because it fails to state a claim upon

which relief can be granted 28 U.S.C. § 1915(e)(2)(B).

D. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. ECF No. 3. The motion will be denied as

moot as this action is being dismissed under the three strikes rule and failure to state a claim. See

28 U.S.C. § 1915(g) and (e)(2)(B).

Accordingly,

IT IS HEREBY ORDERED that plaintiff’ s motion for leave to proceed in forma pauperis

(ECF No. 2) is DENIED.

IT IS FURTHER ORDERED that this case is DISMISSED without prejudice under 28

U.S.C. § 1915.

IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (ECF

No. 3) is DENIED as moot.

IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in

good faith.

A separate Order of Dismissal will be entered this same date.

Dated this 26th day of May, 2020.

é. rttn—

UNITED STATES DISTRICT JUDGE