Page v. Herceles

EASTERN DISTRICT OF MISSOURI

NORTHERN DIVISION

SHALONDA NICHOLE LASHE PAGE, )

)

Plaintiff, )

)

vs. ) Case No. 2:20-CV-79-RWS

)

BART HERCELES, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on the motion of plaintiff Shalonda Nichole Lashe Page

(registration no. 1266460), an inmate at Chillicothe Correctional Center (“CCC”) in Chillicothe,

Missouri, for leave to commence this civil action without prepayment of the required filing fee.

ECF No. 2. Having reviewed the motion and the financial information submitted in support, the

Court has determined to grant the motion, and assess an initial partial filing fee of $76.68. See 28

U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that the

complaint should be dismissed pursuant to 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 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 his 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

Id.

In support of the instant motion, plaintiff submitted a copy of her Missouri Department of

Corrections certified inmate account statement for the period of July 1, 2020 through January 3,

2021. ECF No. 7. A review of plaintiff’s account indicates an average monthly deposit of $383.38

and an average monthly balance of $114.19. Plaintiff has insufficient funds to pay the entire filing

fee. Accordingly, the Court will assess an initial partial filing fee of $76.68, 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 may be granted. An

action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490

U.S. 319, 328 (1989). An action fails to state a claim upon which relief may be granted if it does

not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007).

“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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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 assume the veracity of well-pleaded

facts but need not accept as true “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555).

This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429

U.S. 97, 106 (1976). This means that “if the essence of an allegation is discernible,” the court

the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone

v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even self-represented complaints must

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). Federal courts are not required to assume facts that are not alleged,

Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules in order to excuse

mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113

(1993).

The Complaint

On December 15, 2020, self-represented plaintiff Shalonda Nichole Lashe Page filed the

instant action on a Prisoner Civil Rights Complaint form pursuant to 42 U.S.C. § 1983. ECF No.

1. Plaintiff brings her claims against three defendants: (1) Missouri Department of Corrections

(“MDOC”) Board of Probation and Parole; (2) Bart Herceles, a Probation and Parole Officer, in

his official capacity; and (3) Michael Phelps, a Probation and Parole Officer, in his official

capacity.

Plaintiff alleges she “violated [] probation in 2015 for special conditions and couple other

violations.” Plaintiff states she was sober and attending “[B]ridgeway classes every day like [she]

was supposed to up until [she] was sexually harassed and bullied” by a counselor who is not named

as a defendant. Plaintiff alleges the counselor asked her for “personal pictures.” After she resisted,

the counselor “made [her] life a living hell” and she “quit going to class all together.” Plaintiff

informed her probation officer, defendant Herceles, about the counselor’s actions, but Herceles

accused her of lying to evade a drug test and subsequently suspended her probation. Plaintiff

alleges this incident has left her “traumatized, scared to be around men” and unable to “leave [her]

room.”

way” by making “some serious threats” in August of 2019. Plaintiff alleges Phelps told her that if

she “did not move out of Warren County he would send [her] to prison.” Plaintiff states he then

“forced [her] to move out of [her] place” and told her “it’d be better if [she] moved and didn’t

come back.” After she was incarcerated in Warren County jail, plaintiff alleges Phelps visited her

and accused her “of causing ruc[k]us in Warrenton.”

Included with the complaint is a handwritten page in which plaintiff states that a

correctional officer named Sargent Hale harassed her when she was incarcerated at the Women’s

Eastern Reception and Diagnostic Correctional Center. Sergeant Hale is not a named defendant

in this action. Plaintiff states that Sargent Hale “made a comment saying I heard about you

accu[]sing people of stuff they didn’t do and it to me was about all of this and another incident that

happened here at the prison.” Plaintiff provides no other information and does not explain how

Sergeant Hale’s comments relate to her allegations against the defendants in this action.

For relief, plaintiff requests “to be released from prison and off probation and parole.”

Plaintiff does not seek any monetary damages.

Discussion

Having carefully reviewed the complaint, the Court concludes that plaintiff’s claims

against defendants must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

A. Missouri Department of Corrections Board of Probation and Parole

Plaintiff’s complaint is legally frivolous because the MDOC’s Division of Probation and

Parole is not an entity that can be sued under § 1983. Plaintiff’s claims are barred by the Eleventh

Amendment and, as a result, must be dismissed. See Alabama v. Pugh, 438 U.S. 781, 782 (1978);

Jackson v. Missouri Board of Probation and Parole, 306 Fed. Appx. 333 (8th Cir. 2009). A suit

against the MDOC or a division of the MDOC is, in effect, a suit against the State of Missouri.

immune from liability under § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 63

(1989). E.g., Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 948 F.2d 1084, 1086

(8th Cir. 1991) (agency exercising state power is not “person” subject to § 1983 suit). As a result,

the complaint shall be dismissed as to the MDOC Division of Probation and Parole pursuant to 28

U.S.C. § 1915(e)(2)(B).

B. Official Capacity Claims against Defendants Herceles and Phelps

Plaintiff’s official capacity claims against defendants Herceles and Phelps will also be

dismissed because they are not cognizable under § 1983. Plaintiff alleges these defendants are

employed by the MDOC, a state agency.1 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, 491 U.S. at 71. See also Kelly v. City of Omaha, Neb., 813 F.3d 1070,

1075 (8th Cir. 2016) (stating a “plaintiff who sues public employees in their official, rather than

individual, capacities sues only the public employer”); Elder-Keep v. Aksamit, 460 F.3d 979, 986

(8th Cir. 2006) (stating a “suit against a public official in his official capacity is actually a suit

against the entity for which the official is an agent”). “[N]either a State nor its officials acting in

their official capacities are ‘persons’ under § 1983.” Id. See also 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”). See also Yount v. Long, No. 4:07-CV-1657-FRB, 2008 WL 5191467, at *2 (E.D. Mo.

Dec. 11, 2008) (dismissing claims against parole officers and parole administrators in their official

capacities for the reason they are not “persons” under § 1983).

1 In the complaint, plaintiff provides the address of the MDOC’s Division of Probation and Parole in Jefferson City,

Missouri as the address of the employer of both Herceles and Phelps. ECF No. 1 at 2-3.

their official capacities. See In re Sdds, 97 F.3d 1030, 1035 (8th Cir. 1996). The Eighth Circuit

has held that § 1983 does not abrogate the states’ Eleventh Amendment immunity. See Williams

v. State of Missouri, 973 F.2d 599, 600 (8th Cir. 1992) (Congress did not abrogate the states’

Eleventh Amendment immunity by enacting 42 U.S.C. § 1983); Zajrael v. Harmon, 677 F.3d 353,

355 (8th Cir. 2012) (§ 1983 provides no cause of action against agents of the State acting in their

official capacities).

As a result, the complaint shall be dismissed as to defendants Herceles and Phelps in their

official capacities pursuant to 28 U.S.C. § 1915(e)(2)(B).

C. Individual Capacity Claims against Defendants Herceles and Phelps

Plaintiff’s complaint limited her claims against defendants Herceles and Phelps to their

official capacities. The Court notes, however, that, even if she were to have sued them in their

individual capacities, such claims would also fail.

As to defendant Herceles, plaintiff alleges she told him about an incident with her

Bridgeway counselor which caused her to stop attending classes. Plaintiff does not explain what

kind of classes she was taking or whether they were ordered by a court. Plaintiff alleges Herceles

accused her of lying about the counselor’s actions to evade a drug test and subsequently suspended

her probation. Thus, it appears plaintiff is alleging that Herceles unlawfully revoked her probation.

Plaintiff cannot sustain a claim relating to the revocation of her probation. In Heck v.

Humphrey, 512 U.S. 477 (1994), the Supreme Court determined that where a judgment in favor of

the plaintiff would necessarily implicate the validity of the plaintiff's conviction or the length of

the sentence, a cause of action under § 1983 is not cognizable unless the plaintiff can show that

the underlying “conviction or sentence had been reversed on direct appeal, declared invalid by a

state tribunal authorized to make such a determination, or called into question by the issuance of a

the fact or duration of parole.” Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir.), cert. denied, 516

U.S. 851 (1995). A plaintiff in a § 1983 suit may not question the validity of the confinement

resulting from a parole revocation hearing if she does not allege that the parole board’s decision

has been reversed, expunged, set aside or called into question. Littles v. Bd. of Pardons and

Paroles Div., 68 F.3d 122, 123 (5th Cir.1995); see also McGrew v. Texas Bd. of Pardons &

Paroles, 47 F.3d 158, 161 (5th Cir.1995) (Heck bars § 1983 action challenging revocation of

supervised release); c.f., Schafer v. Moore, 46 F.3d 43, 45 (8th Cir.1995) (per curiam) (holding

that Heck precludes § 1983 action which would impliedly invalidate a denial of parole as challenge

to duration of confinement). When a state prisoner’s § 1983 suit implicates the length of his or

her incarceration, the complaint must be dismissed unless the plaintiff can demonstrate that the

decision establishing the length of incarceration (here, the decision to revoke probation) has

already been invalidated. See Butterfield v. Bail, 120 F.3d 1023, 1025 (9th Cir. 1997) (claim barred

by Heck may be dismissed under Rule 12(b)). Plaintiff has not made any showing that the decision

to revoke her probation due to violations of special conditions has been reversed, expunged, set

aside or called into question. For this reason, the complaint is also subject to dismissal pursuant

to 28 U.S.C. § 1915(e).

As to defendant Phelps, plaintiff alleges he “made some serious threats to [her in] August

2019” by telling her to move out of her home and accusing her of causing a “ruckus.” To establish

a prima facie case under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) the action

occurred “under color of law” and (2) the action is a deprivation of a constitutional right or a

federal statutory right. Parratt v. Taylor, 451 U.S. 527, 535 (1981). The purported verbal

harassment or threats alleged by plaintiff does not rise to the level required to establish a

constitutional violation. See, e.g., McDowell v. Jones, 990 F.2d 433, 434 (8th Cri.1993); King v.

and wantonly cruel that it shocks the conscience, or if the threat exerts coercive pressure on the

plaintiff and the plaintiff suffers from a deprivation of a constitutional right). Moreover, a mere

threat to do an unconstitutional act does not create a constitutional wrong. Gaut v. Sunn, 810 F.2d

923, 925 (9th Cir.1987) (noting that a mere naked threat to engage in an act prohibited by the

Constitution is not equivalent to doing the act itself). A deprivation of “peace of mind” similarly

does not support a constitutional claim. King, 117 F.3d at 1067. Accordingly, plaintiff's claims

for verbal harassment against defendant Phelps is legally frivolous and/or fails to state a claim

upon which relief can be granted.

Accordingly,

IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF

No. 2] is GRANTED.

IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $76.68

within thirty (30) 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) that the remittance is for an original proceeding.

IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to

issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon

which relief can be granted, or both.

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

No. 3] is DENIED as moot.

An appropriate Order of Dismissal shall accompany this Memorandum and Order.

RODNEY W. SIPPEL

UNITED STATES DISTRICT JUDGE

Dated this 12th day of February, 2021.

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