Engel v. MODOC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JOSEPH MICHAEL DEVON ENGEL, )

)

Plaintiff, )

)

v. ) No. 4:20-cv-01668-RWS

)

MODOC, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on a document filed by plaintiff Joseph Michael Devon

Engel that has been construed as a motion for leave to commence this civil action without

prepayment of the required filing fee. (Docket No. 2). Having reviewed the motion, the Court has

determined that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial

partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed

below, the Court will dismiss this action without prejudice. 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.

Plaintiff has not submitted a prison account statement as required by 28 U.S.C. §

1915(a)(2). Nevertheless, having reviewed the information contained in the motion, 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.

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 who is currently incarcerated in the Eastern

Reception, Diagnostic and Correctional Center (ERDCC) in Bonne Terre, Missouri, due to a state

conviction.1 He brings this action pursuant to 42 U.S.C. § 1983, naming the following defendants:

the Missouri Department of Corrections (MODOC); Corizon; the Missouri Attorney General; the

Missouri Governor; an unnamed United States Senator from Missouri; and the ERDCC. (Docket

No. 1 at 1). The Attorney General, Governor, and Senator are sued in their official capacities only.

1 In his handwritten complaint, plaintiff indicates that he is a civilly committed detainee. However, he also provides

his prisoner identification number, while online review of his Missouri Department of Corrections records indicates

that he is at the ERDCC pursuant to a ten-year sentence for various convictions, including second-degree burglary,

first-degree property damage, and resisting arrest. It is therefore clear that plaintiff is a convicted and sentenced state

prisoner, not a civil detainee.

In his “Statement of Claim,” plaintiff asserts that his “insides feel like” they are on “fire,”

that he has uncontrollable shakes and sweats, and that he is defecating and vomiting blood. He

also states that he can “hold nothing down,” has hot and cold flashes, and that his vision is going

“in and out.” Plaintiff further alleges that he is a sovereign citizen, and that “medical refuses to

treat” him. He presents no other factual allegations, nor does he attempt to show how each

defendant is responsible for this purported lack of medical treatment.

As a result, plaintiff seeks $800 billion from MODOC, $1 trillion from Corizon, $3 trillion

from the Attorney General, $5 trillion from the Governor, $10 trillion from the Senator, and $1

trillion from the ERDCC.

Discussion

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging that MODOC, Corizon,

the Attorney General, the Governor, a U.S. Senator, and the ERDCC are liable to him for being

deliberately indifferent to his medical care. For the reasons discussed below, the Court has

determined that plaintiff has not stated a claim against any of the named defendants. As such, this

action will be dismissed without prejudice. See 28 U.S.C. § 1915(e)(2)(B).

A. MODOC and the ERDCC

Plaintiff has named both MODOC, a department of the State of Missouri, and the ERDCC,

a prison within the Department of Corrections, as defendants. Suing these defendants is the same

as suing the State of Missouri itself. As such, these claims must be dismissed because a state is not

a 42 U.S.C. § 1983 “person,” and because the State of Missouri is immune from suit.

i. State Not a § 1983 Person

“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”).

Here, as noted above, plaintiff has sued both MODOC and the ERDCC, a state department

and a state prison, respectively. Both claims are the same as a claim against the State of Missouri.

However, in a claim for money damages, a state is not a “person” for purposes of 42 U.S.C. §

1983. Because plaintiff is missing an essential element under § 1983, the claims against MODOC

and the ERDCC must be dismissed.

ii. Sovereign Immunity

“Sovereign immunity is the privilege of the sovereign not to be sued without its consent.”

Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011). The Eleventh Amendment

has been held to confer immunity on an un-consenting state from lawsuits brought in federal court

by a state’s own citizens or the citizens of another state. Edelman v. Jordan, 415 U.S. 651, 662-63

(1974). See also Webb v. City of Maplewood, 889 F.3d 483, 485 (8th Cir. 2018) (“The Eleventh

Amendment protects States and their arms and instrumentalities from suit in federal court”); Dover

Elevator Co. v. Ark. State Univ., 64 F.3d 442, 446 (8th Cir. 1995) (“The Eleventh Amendment bars

private parties from suing a state in federal court”); and Egerdahl v. Hibbing Cmty. Coll., 72 F.3d

615, 618-19 (8th Cir. 1995) (“Generally, in the absence of consent a suit in which the State or one

of its agencies or departments is named as the defendant is proscribed by the Eleventh

Amendment”). The Eleventh Amendment bars suit against a state or its agencies for any kind of

relief, not merely monetary damages. Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir.

2007) (stating that district court erred in allowing plaintiff to proceed against state university for

injunctive relief, and remanding matter to district court for dismissal).

There are two “well-established exceptions” to the sovereign immunity provided by the

Eleventh Amendment. Barnes v. State of Missouri, 960 F.2d 63, 64 (8th Cir. 1992). “The first

exception to Eleventh Amendment immunity is where Congress has statutorily abrogated such

immunity by clear and unmistakable language.” Id. The second exception is when a state waives

its immunity to suit in federal court. Id. at 65. A state will be found to have waived its immunity

“only where stated by the most express language or by such overwhelming implications from the

text as will leave no room for any other reasonable construction.” Welch v. Tex. Dep’t of Highways

& Pub. Transp., 483 U.S. 468, 473 (1987). Neither exception is applicable in this case.

The first exception is inapplicable, because the Supreme Court has determined that § 1983

does not revoke a state’s Eleventh Amendment immunity from suit in federal court. See Will, 491

U.S. at 66 (“We cannot conclude that § 1983 was intended to disregard the well-established

immunity of a State from being sued without its consent”); and Quern v. Jordan, 440 U.S. 332,

341 (1979) (“[W]e simply are unwilling to believe…that Congress intended by the general

language of § 1983 to override the traditional sovereign immunity of the States”). The second

exception is also inapplicable, because the State of Missouri has not waived its sovereign immunity

in this type of case. See Mo. Rev. Stat. 537.600 (explaining that sovereign immunity is in effect,

and providing exceptions).

Here, plaintiff has named MODOC and the ERDCC as defendants. As noted above,

however, the Eleventh Amendment bars suit against a state or its agencies for both monetary and

injunctive relief. Furthermore, no exceptions to sovereign immunity are present in this case.

Therefore, for this reason as well, plaintiff’s claims against MODOC and the ERDCC must be

dismissed.

B. Corizon

“A corporation acting under color of state law cannot be liable on a respondeat superior

theory.” Smith v. Insley’s Inc., 499 F.3d 875, 880 (8th Cir. 2007). Rather, to support a claim against

an entity such as Corizon, the plaintiff “must show that there was a policy, custom, or official

action that inflicted an actionable injury.” Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006).

See also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975 (8th Cir. 1993) (stating that a

corporation acting under color of state law will only be held liable where “there is a policy, custom

or action by those who represent official policy that inflicts injury actionable under § 1983”); and

Stearns v. Inmate Services Corp., 957 F.3d 902, 906 (8th Cir. 2020) (explaining that the “proper

test” for determining whether a corporation acting under color of state law is liable under 42 U.S.C.

§ 1983 “is whether there is a policy, custom, or action by those who represent…official policy that

inflicts injury actionable under § 1983”).

In this case, Corizon is not mentioned in the “Statement of Claim.” However, as plaintiff

states that he has been denied medical treatment, it is fair to assume that plaintiff blames Corizon,

which is a prison health care provider, for this denial. Nevertheless, plaintiff has presented no

factual allegations whatsoever demonstrating that Corizon is constitutionally liable. As explained

above, in order to support a claim against Corizon, plaintiff “must show that there was a policy,

custom, or official action that inflicted an actionable injury.” As Corizon is not mentioned in the

“Statement of Claim,” it follows that plaintiff’s vague allegations do not establish the existence of

any policy, custom, or official action, much less that a policy, custom, or official action caused

him an injury. Because plaintiff has not alleged sufficient facts to sustain a claim against Corizon,

the claim must be dismissed.

C. Missouri Governor and Attorney General

Plaintiff has sued both the Missouri Governor and Attorney General in their official

capacities only. 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”).

In order to prevail on an official capacity claim, the plaintiff must establish the governmental

entity’s liability for the alleged conduct. Kelly, 813 F.3d at 1075.

In this case, both the Governor and Attorney General are employed by the State of

Missouri. As such, the official capacity claims against them are actually claims against the State

of Missouri itself. However, as discussed above, an individual acting for a state in an official

capacity is not a “person” under 42 U.S.C. § 1983. Will, 491 U.S. at 71 (stating that “neither a

State nor its officials acting in their official capacity are ‘persons’ under § 1983”). Furthermore,

as plaintiff is suing for money damages only, his claims are also barred by the doctrine of sovereign

immunity. See Monroe, 495 F.3d at 594 (explaining that the Eleventh Amendment bars suit against

a state or its agencies for any kind of relief, not merely monetary damages, but that a state official

may be sued in an official capacity for prospective injunctive relief).

The Court notes that even if the Governor and Attorney General were sued in an individual

capacity, plaintiff has not stated a claim against them. 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.” Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006) (quoting

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).

Here, plaintiff has not presented any factual allegations against the Governor or the

Attorney General establishing that they were personally responsible for any purported denial of

plaintiff’s medical care. More specifically, plaintiff has not presented any factual allegations

against the Governor or the Attorney General at all. Despite being named as defendants, they are

not mentioned in the “Statement of Claim,” and plaintiff provides no support for the inference that

either defendant violated plaintiff’s constitutional rights.

For all the reasons discussed above, plaintiff has failed to state a claim against either the

Governor or the Attorney General, and the claims against them must be dismissed.

D. U.S. Senator

Plaintiff lists an unnamed U.S. Senator from Missouri as a defendant. The Senator is sued

in an official capacity only. A suit against a governmental officer in his official capacity is a suit

against the entity for which the officer is an agent. Kentucky v. Graham, 473 U.S. 159, 165-66

(1985). A U.S. Senator is an agent of the United States. See Burke v. Allard, 2007 WL 2697598,

at *3 (D. Colo. 2007) (explaining that “defendant, a member of the United States Senate, is an

agent of the United States”). As such, plaintiff’s official capacity claim against the U.S. Senator is

actually a claim against the United States itself.

“Generally, sovereign immunity prevents the United States from being sued without its

consent.” Iverson v. United States, 973 F.3d 843, 846 (8th Cir. 2020). See also Hinsley v. Standing

Rock Child Protective Services, 516 F.3d 668, 671 (8th Cir. 2008) (stating that “[i]t is well settled

that the United States may not be sued without its consent”). Thus, in order to sue the United

States, a plaintiff must show a waiver of sovereign immunity. See V S Ltd. Partnership v. Dep’t of

Housing and Urban Development, 235 F.3d 1109, 1112 (8th Cir. 2000). Such a waiver must be

“unequivocally expressed” and “cannot be implied.” See United States v. King, 395 U.S. 1, 4

(1969). See also College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527

U.S. 666, 682 (1999) (stating that “in the context of federal sovereign immunity…it is well

established that waivers are not implied”).

Here, plaintiff has not demonstrated a waiver of the sovereign immunity of the United

States. He brings this action pursuant to 42 U.S.C. § 1983. However, § 1983 does not waive the

United States’ sovereign immunity. See Walker v. Harmon, 2016 WL 5376185, at *3 (D. S.D.

2016) (citing Affiliated Professional Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th

Cir. 1999)). Aside from § 1983, plaintiff provides no other basis for such a waiver. He has not, for

example, alleged a violation of the Federal Tort Claims Act. See White v. United States, 959 F.3d

328, 332 (8th Cir. 2020) (explaining that the “FTCA waives sovereign immunity and allows the

government to be held liable for negligent or wrongful acts by federal employees committed while

acting within the scope of their employment”). Therefore, plaintiff’s claim against the unidentified

U.S. Senator must be dismissed.

Even if the Senator were sued in an individual capacity, the Court notes that plaintiff has

failed to state a claim. As noted above, liability in a § 1983 case is personal, and an individual is

liable only for his or her own misconduct. See Frederick, 873 F.3d at 646; and Krigbaum, 808

F.3d at 340. To that end, to demonstrate the Senator’s liability, plaintiff must establish “a causal

link to, and direct responsibility for, the deprivation of rights.” Mayorga, 442 F.3d at 1132. Here,

plaintiff has not done this. Indeed, he has not provided a single factual allegation against the

Senator, much less an allegation that might show that a U.S. Senator was responsible for plaintiff’s

health care at a prison.

For the reasons discussed above, plaintiff has failed to state a claim against the Senator,

and the claim must be dismissed.

E. Motion to Appoint Counsel

Along with his motion for leave to proceed in forma pauperis, plaintiff also seeks the

appointment of counsel. (Docket No. 2). The motion will be denied as moot as this case is being

dismissed without prejudice. See 28 U.S.C. § 1915(e)(2)(B).

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 filing fee of $1.00 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 is

DENIED AS MOOT.

IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. 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 _28th_ day of _December , 2020.

A ‘

RODNEY W. SIPPEL® ;

UNITED STATES DISTRICT JUDGE

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