Slay v. Newete

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

BENJAMIN GERARD SLAY, )

)

Plaintiff, )

)

v. ) No. 4:20-cv-00309-JAR

)

N. NEWETE, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Benjamin Gerard Slay for

leave to commence this civil action without prepayment of the required filing fee. (Docket No. 3).

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 $15.68. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed

below, the Court will dismiss plaintiff’s complaint without prejudice.

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 the 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. 4). The account statement shows an

average monthly deposit of $78.39. The Court will therefore assess an initial partial filing fee of

$15.68, 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 self-represented litigant currently incarcerated at the St. Louis City Medium

Security Institution in St. Louis, Missouri. He brings this action pursuant to 42 U.S.C. § 1983. His

complaint names the following defendants: Constituent Service Officer N. Newete; Unit Manager

Cadena Brim; and Superintendent Jeffrey Carson. (Docket No. 1 at 2-4). Defendants are sued in

both their official and individual capacities.

In his “Statement of Claim,” plaintiff alleges that he was “denied the constitutional right to

grieve multiple issues.” (Docket No. 1 at 5). Plaintiff further states that “[t]hey collaborated

together to continuously deny [him] [his] constitutional right to grieve an issue, by threats, both

verbally and physically, to thwart [him] from further attempting to resolve issues that have not

been resolved to date.”

In the section of the form complaint for plaintiff to demonstrate exhaustion of

administrative remedies, plaintiff states that defendant Newete has either closed out his informal

resolution requests “without addressing [them], or…lies on her response and claims the issue has

been addressed.” (Docket No. 1 at 9). With regard to defendant Brim, plaintiff states that he asked

Brim for a formal grievance, but he never received one. Finally, with regard to Superintendent

Carson, plaintiff states that plaintiff’s mother and friend have contacted Carson, but that “Carson

has told them ‘I have the final say.’”

As a result of these incidents, plaintiff states that he suffered mental stress and anguish.

(Docket No. 1 at 6). He seeks $40,000 from each of the defendants, “or half of their yearly salaries

from the year of 2020-2021.” (Docket No. 1 at 7).

Discussion

Plaintiff is a self-represented litigant who brings this action pursuant to 42 U.S.C. § 1983,

alleging that defendants Newete, Brim, and Carson denied him his right to grieve multiple issues.

For the reasons discussed below, the action must be dismissed without prejudice for failure to state

a claim.

A. Official Capacity Claim

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, plaintiff alleges that defendants are employed by the St. Louis City Medium Security

Institution. As such, his official capacity claims against defendants are actually claims against St.

Louis itself, which is defendants’ employer.

A local governing body such as St. Louis can be sued directly under § 1983. See Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). In order to prevail on this type

of claim, plaintiff must establish the city’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

municipal policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or

supervise.” 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”).

Thus, there are three ways in which plaintiff can prove the liability of St. Louis.

First, plaintiff can show the existence of an unconstitutional policy. “Policy” refers to

“official policy, a deliberate choice of a guiding principle or procedure made by the municipal

official who has final authority regarding such matters.” Corwin v. City of Independence, Mo., 829

F.3d 695, 700 (8th Cir. 2016). See also Russell v. Hennepin Cty., 420 F.3d 841, 847 (8th Cir. 2005)

(“A policy is a deliberate choice to follow a course of action made from among various alternatives

by the official or officials responsible…for establishing final policy with respect to the subject

matter in question”). For a policy that is unconstitutional on its face, a plaintiff needs no other

evidence than a statement of the policy and its exercise. Szabla v. City of Brooklyn, Minn., 486

F.3d 385, 389 (8th Cir. 2007). However, when “a policy is constitutional on its face, but it is

asserted that a municipality should have done more to prevent constitutional violations by its

employees, a plaintiff must establish the existence of a ‘policy’ by demonstrating that the

inadequacies were a product of deliberate or conscious choice by the policymakers.” Id. at 390.

“A policy may be either a policy statement, ordinance, regulation, or decision officially adopted

and promulgated by the municipality’s governing body.” Angarita v. St. Louis Cty., 981 F.2d 1537,

1546 (8th Cir. 1992).

Second, plaintiff can establish a claim of liability based on an unconstitutional “custom.”

In order to do so, plaintiff must demonstrate:

1) The existence of a continuing, widespread, persistent pattern of

unconstitutional misconduct by the governmental entity’s

employees;

2) Deliberate indifference to or tacit authorization of such conduct

by the governmental entity’s policymaking officials after notice

to the officials of that misconduct; and

3) That plaintiff was injured by acts pursuant to the governmental

entity’s custom, i.e., that the custom was a moving force behind

the constitutional violation.

Johnson v. Douglas Cty. Med. Dep’t, 725 F.3d 825, 828 (8th Cir. 2013).

Finally, plaintiff can assert a municipal liability claim by establishing a deliberately

indifferent failure to train or supervise. To do so, plaintiff must allege a “pattern of similar

constitutional violations by untrained employees.” S.M. v. Lincoln Cty., 874 F.3d 581, 585 (8th Cir.

2017).

Plaintiff does not need to specifically plead the existence of an unconstitutional policy or

custom. Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th Cir. 2004).

However, at a minimum, the complaint must allege facts supporting the proposition that an

unconstitutional policy or custom exists. Doe ex rel. Doe v. Sch. Dist. of City of Norfolk, 340 F.3d

605, 614 (8th Cir. 2003).

In this case, plaintiff has failed to state a claim against St. Louis. He has not presented any

facts to support the proposition that an unconstitutional policy or custom exists. That is, he has not

pointed to any “policy statement, ordinance, regulation, or decision officially adopted and

promulgated by the municipality’s governing body” to establish that St. Louis has an

unconstitutional policy. He has also failed to show the existence of widespread unconstitutional

misconduct, much less that St. Louis policymakers were deliberately indifferent to or tacitly

authorized such conduct, which is necessary to demonstrate an unconstitutional custom. Finally,

plaintiff has alleged no facts regarding a failure to train its employees on the part of St. Louis. In

particular, he has not alleged a “pattern of similar constitutional violations by untrained

employees.” For these reasons, plaintiff’s official capacity claims against defendants must be

dismissed. See Ulrich v. Pope Cty., 715 F.3d 1054, 1061 (8th Cir. 2013) (affirming district court’s

dismissal of Monell claim where plaintiff “alleged no facts in his complaint that would demonstrate

the existence of a policy or custom” that caused the alleged deprivation of plaintiff’s rights).

B. Individual Capacity Claims

Plaintiff’s individual capacity claims against defendants Newete, Brim, and Carson must

also be dismissed. First, plaintiff’s claims fail because he has no constitutional right to participate

in the grievance procedure. That is, a grievance procedure is a procedural right only and does not

confer upon an inmate a substantive right. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). If

plaintiff does not have a substantive right to participate in the grievance process, it stands to reason

that defendants’ alleged actions in preventing plaintiff from grieving an issue does not violate the

constitution. See Lomholt v. Holder, 287 F.3d 683, 684 (8th Cir. 2002) (agreeing with district court

that “defendants’ denial of [plaintiff’s] grievances did not state a substantive constitutional

claim”); and Fallon v. Coulson, 5 F.3d 531, 1993 WL 349355, at *1 (8th Cir. 1993) (unpublished

opinion) (stating that the failure of defendants “to acknowledge receipt of and respond to plaintiffs’

grievances pursuant to prison procedure did not violate any of plaintiffs’ constitutional rights”).

Second, plaintiff has not established the personal liability of any of the individual

defendants. Liability in a § 1983 case is personal. Frederick v. Motsinger, 873 F.3d 641, 646 (8th

Cir. 2017). In other words, “[g]overnment officials are personally liable only for their own

misconduct.” S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015). As such, § 1983 liability

“requires a causal link to, and direct responsibility for, the deprivation of rights.” Madewell v.

Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). See also Kohl v. Casson, 5 F.3d 1141, 1149 (8th Cir.

1993) (dismissing plaintiff’s excessive bail claims because none of the defendants set plaintiff’s

bail, and therefore, “there can be no causal connection between any action on the part of the

defendants and any alleged deprivation” of plaintiff’s rights). To that end, a plaintiff must allege

facts connecting the defendant to the challenged action. See Bitzan v. Bartruff, 916 F.3d 716, 717

(8th Cir. 2019).

In the “Statement of Claim,” plaintiff refers to all three defendants collectively, alleging

that “[t]hey collaborated together” to keep him from using the grievance process, and jointly

threatened him. This fails to demonstrate how each individual defendant was directly responsible

for depriving plaintiff of his constitutional rights. In other words, he has failed to connect each

defendant to the challenged action. To the extent that defendants are mentioned by name in the

body of the complaint, plaintiff states only that Newete closed out his informal resolution requests,

that Brim failed to give him a formal grievance form, and that Carson advised plaintiff’s family

that he has “the final say” at the institution. None of these statements establish the violation of a

constitutional right.

Finally, plaintiff’s allegations regarding threats are insufficient to state a claim. He

provides no factual support for his vague assertion that he was threatened. He does not state who

made the threat, when it was made, whether there was more than one threat, or the actual nature

of the threat. In short, he has presented a conclusion, which the Court is not required to accept as

true. See Wiles v. Capitol Indem. Corp., 280 F.3d 868, 870 (8th Cir. 2002) (“While the court must

accept allegations of fact as true…the court is free to ignore legal conclusions, unsupported

conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual

allegations”). Moreover, nothing in the “Statement of Claim” raises plaintiff’s right to relief above

the level of speculation. See Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017) (“Courts are not

bound to accept as true a legal conclusion couched as a factual allegation, and factual allegations

must be enough to raise a right to relief above the speculative level”).

For all these reasons, plaintiff has failed to state a claim upon which relief can be granted.

Therefore, this action must be dismissed without prejudice.

C. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. (Docket No. 2). The motion will be denied

as moot as plaintiff’s complaint is being dismissed without prejudice for failure to state a claim.

See 28 U.S.C. § 1915(e)(2)(B).

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis (Docket

No. 3) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $15.68

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 prison

registration number; (3) the case number; and (4) the statement that the remittance is for an original

proceeding.

IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel (Docket

No. 2) is DENIED AS MOOT.

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 24th day of June, 2020.

ITED STATES DISTRICT JUDGE

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