Engel v. ERDCC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JOSEPH MICHAEL DEVON ENGEL, etal., )

)

Plaintiffs, )

)

Vv. ) No. 4:20-cv-01765-RLW

)

ERDCC, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff! Joseph Michael Devon

Engel for leave to commence this civil action without prepayment of the required filing fee.” Based

on the financial information provided by plaintiff, the motion will be granted, and the Court 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 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

' Plaintiff purports to bring this complaint on behalf of himself, as well as inmate Danny Parker, who is also named

as a plaintiff in the case caption. However, plaintiff Engel is the only one to sign the complaint. Furthermore, plaintiff

Engel is the only one to assert any claims. Indeed, it appears that inmate Parker is only named in the complaint because

plaintiff Engel wants Parker “to get 30% of [his] lawsuit.” (Docket No. 1 at 1). As such, the Court will proceed as

though plaintiff Engel was the sole plaintiff in this case. Furthermore, as discussed below, the Clerk of Court will be

directed to strike Parker from this action.

? Plaintiff has not submitted a separate motion for leave to proceed in forma pauperis, nor has he paid the filing fee.

However, in the body of his complaint, plaintiff states: “Application to proceed in District Court without prepaying

fees [and] cost[s][.] I am [in] ERDCC [and] J only get $5.00 dollars a month [and] can[’]t get another copy of account

[statement][.] [There] is one on file with courts.” (Docket No. 1 at 2). The Court has construed this as a motion for

leave to-commence this civil action without prepayment of the required filing fee.

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), claiming that he cannot get another copy. Nevertheless, having reviewed the

information provided by plaintiff, the Court will require him to pay an initial partial filing fee of

$1.00. See Henderson v. Norris, 129 F.3d 481, 484 (8" 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.” Jd. 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. /d. 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 (8" Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73

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 (8" 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 (8" Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8"

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 at the Eastern Reception,

Diagnostic and Correctional Center (ERDCC) in Bonne Terre, Missouri.’ Since September 9,

3 In his handwritten complaint, plaintiff appears to indicate that he is a “civilly committed detainee.” (Docket No. | at

1). However, plaintiff has also provided his prison registration number, and has acknowledged that he is being held at

the ERDCC, a state correctional facility. Moreover, review of the Missouri Department of Correction’s online records

show that plaintiff is a convicted state prisoner serving a ten-year sentence for, among other things, second-degree

burglary. Therefore, the Court has determined that plaintiff is actually a convicted and sentenced state prisoner, and

not a civilly committed detainee, for purposes of 28 U.S.C. § 1915 review.

2020, he has filed over 130 cases in the United States District Court for the Eastern District of

Missouri.

Plaintiff brings the instant action pursuant to 42 U.S.C. § 1983, naming the ERDCC, the

Missouri Department of Corrections, and Corizon as defendants. (Docket No. 1 at 1). In his

“Statement of Claim,” he asserts that on December 5, 2020, at 2:45 p.m., his cellmate hit the

medical distress button for him because his “insides” felt like they were “on fire,” he could not

hold anything down, he was vomiting and defecating blood, he had “uncontrollable shakes,” he

was sweating, and his vision was in and out. Plaintiff alleges that “medical does nothing and [the]

D.O.C. does nothing.”

As a result, plaintiff states that he has suffered “mind raping, mental health issues, [and]

medical problems.” He seeks $370 trillion in damages, as well as 10,000,000 in JP Morgan stock.

Plaintiff also indicates that he wants his cellmate “to get 30% of [his] lawsuit.”

Discussion

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

naming the ERDCC, the Missouri Department of Corrections, and Corizon as defendants. For the

reasons discussed below, this action must be dismissed without prejudice. See 28 U.S.C. §

1915(e)(2)(B).

A. ERDCC and the Missouri Department of Corrections

The Missouri Department of Corrections is a department of the State of Missouri, while

the ERDCC is a state correctional facility. Thus, the claims against these defendants are treated

the same as claims against the State of Missouri itself. Such claims fail for two reasons. First, the

State of Missouri is not a “person” for purposes of 42 U.S.C. § 1983. Second, the State of Missouri

is protected by the doctrine of sovereign immunity.

i. State is Not a 42 U.S.C. § 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 (8 Cir. 2008). See also Deretich

v. Office of Admin. Hearings, 798 F.2d 1147, 1154 (8" 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 (8" Cir. 2017) (asserting that a “State

is not a person under § 1983”); and Kruger v. Nebraska, 820 F.3d 295, 301 (8 Cir. 2016)

(explaining 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 the Missouri Department of Corrections and

the ERDCC. These claims are treated as being made against the State of Missouri. However, a

state is not a “person” for purposes of a 42 U.S.C. § 1983 claim for money damages, which is what

plaintiff is seeking. Because plaintiff is missing an essential element of a § 1983 action, the claims

against the Missouri Department of Corrections 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 astate’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 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 (8" 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 (8" 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 (8" 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 (8 Cir. 1992). “The first

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

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

its immunity to suit in federal court. Jd. 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).

In this case, plaintiff has named the Missouri Department of Corrections 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, plaintiffs claims against the

Missouri Department of Corrections and the ERDCC must be dismissed.

B. Corizon

In order to state a 42 U.S.C. § 1983 claim against a corporation, such as Corizon, that is

acting under color of state law, a 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 (8 Cir. 2006).

See also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975 (8" 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 (8"" 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”). Furthermore, it is not enough for a plaintiff to simply

claim that the corporation employed a person or persons who violated his constitutional rights. See

Smith v. Insley’s Inc., 499 F.3d 875, 880 (8" Cir. 2007) (“A corporation acting under color of state

law cannot be liable on a respondeat superior theory”).

In this case, plaintiff has arguably shown that he suffered from an objectively serious

medical need on December 5, 2020. He has not, however, demonstrated that Corizon is liable to

him for violating his constitutional rights by failing to treat him. To begin, plaintiffs claim that

“medical does nothing” is too vague to provide any explanation as to what actually occurred. For

example, it is impossible to know whether plaintiff means that he was denied medical care, that

medical care was delayed, or that he believes the medical care he received was deficient. Aside

from this one statement, plaintiff provides no further factual allegations to describe what he means,

or to support his conclusory assertion. Instead, he leaves it to the Court to speculate, which is not

sufficient to state a claim. See Torti v. Hoag, 868 F.3d 666, 671 (8" 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’’).

More importantly, plaintiff’s facts, such as they are, do not establish that the purported

refusal to treat him came from a Corizon policy, custom, or official action, which is necessary to

demonstrate Corizon’s liability. Indeed, other than a broad reference to “medical,” there is no real

attempt by plaintiff to assert any responsibility whatsoever. Aside from being named as a

defendant, Corizon is not mentioned again in the complaint. To the extent that plaintiff seeks to

hold Corizon responsible for the actions of its employees, he cannot recover under a theory of

respondeat superior. For these reasons, plaintiff has failed to state a claim against Corizon.

Therefore, the claim must be dismissed.

C. Claim on Behalf of Other Inmate

Plaintiff purports to bring this action on behalf of himself, and on behalf of a second inmate,

who plaintiff identifies as Danny Parker. However, there is nothing in the complaint to indicate

that Parker is seeking to assert liability for the violation of his own constitutional rights. Rather, it

appears that Parker is plaintiff's cellmate, and that plaintiff wants Parker “to get 30% of [his]

lawsuit.” Plaintiff has no standing to bring claims on behalf of other prisoners. See Martin v.

Sargent, 780 F.2d 1334, 1337 (8" Cir. 1985) (stating that “[a] prisoner cannot bring claims on

behalf of other prisoners”); and Miner v. Brackney, 719 F.2d 954, 956 (8 Cir. 1983) (explaining

that plaintiff did not have “standing to assert” a constitutional claim on behalf of another person).

Furthermore, Parker has not signed the complaint, and there are no allegations that Parker had his

rights violated or was injured. As such, the Court will direct the Clerk of Court to strike Danny

Parker from this action.

D. Motion to Appoint Counsel

Plaintiff has not filed a separate motion to appoint counsel. However, in the body of the

complaint, he does seek the appointment of counsel in this case. To the extent that this request can

be construed as a separate motion, it is denied as moot, as this action is being dismissed pursuant

to 28 U.S.C. § 1915(e)(2)(B).

Accordingly,

IT IS HEREBY ORDERED that plaintiffs motion for appointment of counsel is

GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial 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 plaintiff's motion for appointment of counsel is

DENIED AS MOOT.

IT IS FURTHER ORDERED that the Clerk of Court shall STRIKE Danny Parker from

this action.

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 day of, 2021.

. VA

RONNIE L. WHITE

UNITED STATES DISTRICT JUDGE

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