# Engel v. Desoto Police Dept.

> District Court, E.D. Missouri · February 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10234426

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** February 2, 2021
- **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/10234426

## How later opinions describe it (automated extraction)

- 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
- 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”
- explaining that municipal liability may attach if a constitutional violation “resulted from (1) an official municipal policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or supervise”
- stating that a “plaintiff who sues public employees in their official, rather than individual, capacities sues only the public employer”
- explaining that official capacity suit against sheriff and his deputy “must be treated as a suit against the County”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JOSEPH MICHAEL DEVON ENGEL, et al., )
)
Plaintiffs, )
)
v. ) No. 4:20-cv-01806-HEA
)
DESOTO POLICE DEPT., )
)
Defendants. )

OPINION, 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. (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 $5.64. 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 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. 5). The account statement shows an
average monthly deposit of $28.12. The Court will therefore assess an initial partial filing fee of

$5.64, 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 who is currently incarcerated at the Eastern Reception,
Diagnostic and Correctional Center (ERDCC) in Bonne Terre, Missouri.1 Since September 9,
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. The complaint is
handwritten on a Court-provided form. In the complaint, he names the Desoto Police Department
and the Mayor of Desoto as defendants. (Docket No. 1 at 2-3). The Mayor of Desoto is sued in an
official capacity only. (Docket No. 1 at 3).
In his “Statement of Claim,” plaintiff declares that he is a sovereign citizen. (Docket No. 1
at 3). He further alleges that “they have been arresting [him],” assaulting him, harassing him, and

1 In his complaint, plaintiff appears to indicate that he is a “civilly committed detainee.” (Docket No. 1 at 2). 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.
“charging [him] with charges” that are not his. This has resulted in mental anguish, hurt pride, and
his freedom being taken away. Plaintiff asserts that Officer Bora and Officer Locke both witnessed
this. As a result, he seeks $400 billion in damages. (Docket No. 1 at 5).
Discussion
Plaintiff is a self-represented litigant who brings this action pursuant to 42 U.S.C. § 1983,

naming the Desoto Police Department and the Mayor of Desoto as defendants. For the reasons
discussed below, this action must be dismissed without prejudice. See 28 U.S.C. § 1915(e)(2)(B).
A. Desoto Police Department
Plaintiff has named the Desoto Police Department as a defendant in this case. However,
the Desoto Police Department is a department of local government, and not a juridical entity,
suable as such. See Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992)
(affirming dismissal of West Memphis Police Department and West Memphis Paramedic Services
because they were “not juridical entities suable as such”). See also Owens v. Scott Cty. Jail, 328
F.3d 1026, 1027 (8th Cir. 2003) (stating that “county jails are not legal entities amenable to suit”);
and De La Garza v. Kandiyohi Cty. Jail, 18 Fed. Appx. 436, 437 (8th Cir. 2001) (affirming district

court dismissal of county jail and sheriff’s department as parties because they are not suable
entities). Because the Desoto Police Department is not a suable entity, the claim against it must be
dismissed.
Even if the City of Desoto was substituted as the proper party defendant, the claim would
still be subject to dismissal. A local governing body such as the City of Desoto can be sued directly
under 42 U.S.C. § 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, the plaintiff must establish the governmental
entity’s liability for the alleged conduct. Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th
Cir. 2016). 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 the City of Desoto.
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). 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. See 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).
Here, plaintiff has failed to present any factual allegations supporting the proposition that
the City of Desoto has an unconstitutional policy or custom, or that it has been deliberately
indifferent in failing to train or supervise its employees. As to an unconstitutional policy, plaintiff
presents no facts demonstrating that a “policy statement, ordinance, regulation, or decision
officially adopted and promulgated by the municipality’s governing body” caused him harm. With
regard to an unconstitutional custom, there are no facts to show a “widespread, persistent pattern
of unconstitutional misconduct,” much less that Desoto officials were deliberately indifferent to
or tacitly authorized such misconduct. Finally, as to a failure to train or supervise, plaintiff has not
established a “pattern of similar constitutional violations by untrained employees.”
Rather than presenting facts to sustain a municipal liability claim against the City of
Desoto, plaintiff’s entire “Statement of Claim” rests on his conclusory assertions that he has been
arrested, assaulted, harassed, and wrongfully charged, without any factual support whatsoever.
Because he has not shown that the City of Desoto has an unconstitutional policy or custom, or was
deliberately indifferent in failing to train or supervise its employees, plaintiff’s claim 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. Mayor of Desoto
Plaintiff has sued the Mayor of Desoto in an official capacity. 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, 813 F.3d at 1075 (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, the Mayor of Desoto is alleged to be employed by the City of Desoto. As such, the
official capacity claim against the Mayor is treated as a claim against the City of Desoto itself.
However, as discussed above, plaintiff has failed to state a municipal liability claim against the
City of Desoto, as he has not demonstrated the existence of an unconstitutional policy or custom,
or shown a deliberately indifferent failure to train or supervise. See Mick, 883 F.3d at 1079
(explaining that municipal liability may attach if a constitutional violation “resulted from (1) an
official municipal policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train
or supervise”). Therefore, the official capacity claim against the Mayor of Desoto must be
dismissed.

Even if plaintiff had sued the Mayor of Desoto in an individual capacity, the claim would
still be subject to dismissal. Liability in a 42 U.S.C. § 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 Mayor of Desoto at all.
Certainly, he has not established the Mayor’s personal responsibility for depriving plaintiff of his
constitutional rights. Indeed, aside from being listed as a defendant, the Mayor of Desoto is not
mentioned anywhere else in the complaint. Therefore, even if the Mayor of Desoto had been sued
in an individual capacity, the claim would be dismissed.
C. Motion to Appoint Counsel
Plaintiff has filed a motion to appoint counsel. (Docket No. 3). The motion will be 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 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 $5.64
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 (Docket
No. 3) 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 2"4 day of February, 2021. I _

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10234426. Public record. Not legal advice.