Engel v. Jefferson County Courts

UNITED STATES DISTRICT COURT —

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JOSEPH MICHAEL DEVON ENGEL, )

Plaintiff, . )

v. No. 4:20-cv-01949-NCC

JEFFERSON COUNTY COURTS, et al., .

Defendants. .

MEMORANDUM AND ORDER

This matter is 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

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

' Plaintiff has not submitted a separate motion for leave to proceed in forma pauperis. However, in the body of his

complaint, plaintiff states the following: “Application to proceed in District Court without prepaying fees or costs. I

am being held [at] ERDCC [and] only get $5.00 dollars a month.” (Docket No. | at 1). The Court has construed this

as a motion for leave to commence this civil action without prepayment of the required fee.

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. Jd.

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

1915(a)(2), asserting that he cannot get a copy because the Department of Corrections “does not

do [their] job.” (Docket No. 1 at 2). Nevertheless, having reviewed the information provided by

plaintiff, the Court will direct him to pay an initial partial filing fee of $1.00. See Henderson v.

Norris, 129 F.3d 481, 484 (8" Cir. 1997) (explaining that when a prisoner is unable to provide the

Court with a 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. Jd. 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

(8" 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 □□□

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).

Background

Plaintiff is a self-represented litigant who is currently incarcerated at the Missouri Eastern

Correctional Center in Pacific, Missouri.” At the time this case was filed, however, plaintiff was

an inmate at the Eastern Reception, Diagnostic and Correctional Center (ERDCC) in Bonne Terre.

? In his handwritten complaint, plaintiff appears to indicate that he is a “civilly committed detainee.” (Docket No. 1 at

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

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.

Since September 9, 2020, he has filed over 130 cases in the United States District Court for the

Eastern District of Missouri.

On December 29, 2020, the Court received a document from plaintiff that was construed

as a Civil action pursuant to 42 U.S.C. § 1983. (Docket No. 1). On January 21, 2021, the Court

denied plaintiff's motion for leave to proceed in forma pauperis and dismissed his complaint under

the “three strikes” provision of 28 U.S.C. § 1915(g). (Docket No. 3; Docket No. 4). After

dismissing the case, however, the Court determined that plaintiff had actually signed his complaint

before accruing his third strike. As such, the Court vacated the dismissal. (Docket No. 6).

Despite his case being reopened, plaintiff filed a notice of appeal. (Docket No. 7). On

March 5, 2021, the United States Court of Appeals for the Eighth Circuit dismissed the appeal for

lack of jurisdiction. (Docket No. 12). The mandate was issued on April 2, 2021. (Docket No. 13).

The Complaint

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, naming a total of fourteen’

defendants: (1) the Jefferson County Courts; (2) the Jefferson County Jail Administrator; (3) the

Jefferson County Sheriff's Department; (4) the Jefferson County Sheriff; (5) the Jefferson County

Undersheriff; (6) the Jefferson County District Courts; (7) the Missouri District Courts; (8) the

Assistant Attorney General; (9) the Attorney General; (10) the Lieutenant Governor; (11) the

Governor; (12) the House Rep MO; (13) Senator MO #1; and (14) Senator MO #2. (Docket No. 1

at 2). Defendants are sued in both their individual and official capacities. (Docket No. 1 at 1).

In the complaint, plaintiff alleges that the use of “video court” is “not right” because it

causes “to[o] many mistakes.” (Docket No. | at 2). He further states that he has a “right to be in a

3 In the case caption, plaintiff lists the Jefferson County Courts as a defendant, and then references “12 other

defendants.” This implies a total of thirteen defendants. However, plaintiff actually lists thirteen defendants, in

addition to the Jefferson County Courts, for a total of fourteen. For the sake of completeness, the Court will treat the

complaint as naming fourteen defendants in total.

court room in front of a judge.” According to plaintiff, video is not professional, and he did not

have the opportunity to see a lawyer ahead of time. He also claims that when he was sentenced,

the judge and other people were laughing.

Plaintiff states that video court is mental “raping,” and that it has caused him mental health

trauma, PTSD, and nightmares. As a result, he seeks trillions of dollars in damages.

Discussion

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

1983. He has named a total of fourteen defendants, including three court systems, a sheriff's

department, three Jefferson County employees, four state officials, and three United States

officials. Because plaintiff is proceeding in forma pauperis, the Court has reviewed the complaint

pursuant to 28 U.S.C. § 1915. Based on that review, and for the reasons discussed below, the Court

will dismiss this action without prejudice.

A. Jefferson County Sheriff's Department

Plaintiff has named the Jefferson County Sheriff's Department as a defendant. However,

the Sheriff's Department is a department of local government, and not a distinctly suable entity.

See Ketchum vy. City of West Memphis, Ark., 974 F.2d 81, 82 (8" Cir. 1992) (affirming dismissal

of West Memphis Police Department and West Memphis Paramedic Services because they were

“not juridical entities suable as such”); Owens v. Scott Cty. Jail, 328 F.3d 1026, 1027 (8" 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 (8 Cir. 2001) (affirming district court dismissal of

county jail and sheriff's department as parties because they are not suable entities). As such, the

claim against the Jefferson County Sheriff's Department must be dismissed.

Even if Jefferson County was substituted as the proper party defendant, plaintiff has still

failed to state a claim. A local governing body such as Jefferson County 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). However, a municipality cannot be held liable merely because it employs a tortfeasor. □□ □□

v. City of St. Louis, Mo., 891 F.3d 721, 728 (8 Cir. 2018) (“In an action under § 1983, a

municipality...cannot be liable on a respondeat superior theory”). Rather, 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 (8" 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

Cir. 2018). See also Marsh y. Phelps Cty., 902 F.3d 745, 751 (8" 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 Jefferson County.

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 (8 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 (8" 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.” Jd. 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 (8 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 (8" 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 (gh Cir.

2017).

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

custom. Crumpley-Patterson y. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8 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 (8" Cir. 2003).

In this case, plaintiff has not presented facts supporting the proposition that his rights were

violated due to an unconstitutional policy, custom, or failure to train on the part of Jefferson

County.

With regard to an unconstitutional policy, plaintiff does not mention any “policy statement,

ordinance, regulation, or decision officially adopted and promulgated by” Jefferson County as

causing him harm. He has certainly not shown that any Jefferson County official made “a

deliberate choice of a guiding principle or procedure” that violated his constitutional rights. While

plaintiff broadly complains about “video court,” there are no facts connecting such court with a

Jefferson County policy, or even that “video court” itself is violative of the constitution.

As to custom, plaintiff has not established the “existence of a continuing, widespread,

persistent pattern of unconstitutional misconduct by” Jefferson County employees, much less that

Jefferson County policymaking officials were deliberately indifferent to or tacitly authorized such

misconduct. Indeed, rather than demonstrating a “persistent pattern,” plaintiffs facts, such as they

are, concern a single instance in which plaintiff appeared for a video sentencing. A single

occurrence is not sufficient to show a custom. See Wedemeier v. City of Ballwin, Mo., 931 F.2d

24, 26 (8 Cir. 1991).

Likewise, plaintiff has not adequately asserted a failure to train or supervise, because none

of his facts indicate a “pattern of similar constitutional violations by untrained employees.” Indeed,

far from alleging a pattern, he has not shown that even a single Jefferson County employee was

responsible for a constitutional violation.

For these reasons, plaintiff has not properly stated a municipal liability claim. Thus, even

if Jefferson County was substituted as the defendant in place of the Jefferson County Sheriff's

Department, the claim would be subject to dismissal. See Ulrich v. Pope Cty., 715 F.3d 1054, 1061

(8" 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. Jefferson County Employees

Plaintiff has sued the Jefferson County Jail Administrator, Sheriff, and Undersheriff in both

their official and individual capacities.

i. Official Capacity Claims

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 (8" 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 (8 Cir. 1999). See also

Brewington v. Keener, 902 F.3d 796, 800 (8" 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 (8" 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 Jefferson County Jail Administrator, Sheriff, and Undersheriff are all employees

of Jefferson County. As such, the official capacity claims against them are treated as claims against

Jefferson County itself, their employer. However, as previously discussed, plaintiff has not stated

a claim against Jefferson County, because he has not presented any allegations establishing that

his constitutional rights were violated due to aJ efferson County policy, custom, or failure to train.

See Marsh, 902 F.3d at 751 (recognizing “claims challenging an unconstitutional policy or custom,

or those based on a theory of inadequate training, which is an extension of the same”). Therefore,

the official capacity claims against the Jefferson County Jail aminiennton the Jefferson County

Sheriff, and the Jefferson County Undersheriff must be dismissed. -

il. Individual Capacity Claims

Liability in a 42 U.S.C. § 1983 case is personal. Frederick v. Motsinger, 873 F.3d 641, 646

(8" 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 (8" 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 (8" Cir. 2006) (quoting Madewell v. Roberts, 909 F.2d 1203, 1208

(8" Cir. 1990)). See also Kohl v. Casson, 5 F.3d 1141, 1149 (8" 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 plaintiffs 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 (8 Cir. 2019).

Here, plaintiff has not presented any facts connecting the Jefferson County Jail

Administrator, the Jefferson County Sheriff, or the Jefferson County Undersheriff with any

violation of plaintiffs constitutional rights. None of these defendants are alleged to have been

responsible for “video court,” or to have played any role in plaintiff's sentencing hearing. In point

of fact, aside from being listed as defendants, they are not mentioned anywhere else in the

complaint. Because there is no indication that any of these three defendants played any role in the

purported deprivation of plaintiffs constitutional rights, the individual capacity claims against

them must be dismissed.

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C. State Officials

Plaintiff has sued the Governor, Lieutenant Governor, Attorney General, and Assistant

Attorney General in both their official and individual capacities.

i. Official Capacity Claims

As noted above, in an official capacity claim against an individual, the claim is actually

“against the governmental entity itself.” See White, 865 F.3d at 1075. These four defendants appear

to be officials of the State of Missouri. Thus, the official capacity claims against them are actually

claims against the state itself, which employs them. The claims fail for two reasons.

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

is missing an essential element of a § 1983 action, the official capacity claims against the Governor,

Lieutenant Governor, Attorney General, and Assistant Attorney General must be dismissed.

Second, the State of Missouri is protected by the doctrine of 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 sovereign immunity on an un-consenting state from lawsuits brought in federal

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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 (8" 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”). “A claim for damages against a state employee in his official capacity

is barred under the Eleventh Amendment.” See Andrus ex rel. Andrus v. Arkansas, 197 F.3d 953,

955 (8" Cir. 1999).

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

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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's official capacity claims for money damages against the four state

employees are barred by the Eleventh Amendment. Moreover, no exception to sovereign immunity

is present in this case. Therefore, for this reason as well, plaintiff's official capacity claims against

the Governor, Lieutenant Governor, Attorney General, and Assistant Attorney General must be

dismissed.

ii. Individual Capacity Claims

To state an individual capacity claim under 42 U.S.C. § 1983, plaintiff must demonstrate

defendants’ liability by establishing “a causal link to, and direct responsibility for, the deprivation

of rights.” See Mayorga, 442 F.3d at 1132. In this case, however, there are no facts connecting any

of these four defendants with the challenged action. To the contrary, plaintiff merely lists these

individuals by job title, and then provides the specific amount of damages he wants from each. For

instance, he names the Assistant Attorney General as a defendant, and requests $1,100 trillion from

this person. The Assistant Attorney General is not mentioned anywhere else in the complaint, nor

are the other three state officials. Because plaintiff has not established the personal responsibility

of the Governor, Lieutenant Governor, Attorney General, and Assistant Attorney General, the

individual capacity claims against them must be dismissed.

D. Jefferson County Courts, Jefferson County District Courts, and Missouri District

Courts

Plaintiff has named the Jefferson County Courts, the Jefferson County District Courts, and

the Missouri District Courts as defendants. The Court has construed these claims as being against

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the state courts of Missouri. The claims fail because state courts as entities are not vulnerable to

suits pursuant to 42 U.S.C. § 1983, because they are protected by Eleventh Amendment immunity.

Mildfelt v. Circuit Court of Jackson Cty., Mo., 827 F.2d 343, 345 (8™ Cir. 1987). See also Harris

v. Missouri Court of Appeals, Western Dist., 787 F.2d 427, 429 (8" Cir. 1986) (stating that “courts

as entities are not vulnerable to § 1983 suits, because they are protected by state immunity under

the eleventh amendment”). Therefore, these claims must be dismissed.

E. United States Officials

Plaintiff has sued a member of the House of Representatives and the two United States

Senators from Missouri in both their official and individual capacities.

i. Official Capacity Claims

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

or a Member of the House of Representatives 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 claims against

these three defendants are actually claims 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 (8" Cir. 2020). See also Hinsley v. Standing

Rock Child Protective Services, 516 F.3d 668, 671 (8" Cir. 2008) (stating that “Tit 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 (8 Cir. 2000). Such a waiver must be

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

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(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 (5"

Cir. 1999)). Aside from § 1983, plaintiff provides no other basis for such a waiver. Therefore,

plaintiff's official capacity claims against the unnamed Member of the House of Representatives,

and the two United States Senators must be dismissed.

ii. Individual Capacity Claims

The individual capacity claims against the three United States officials named as

defendants must also be dismissed, as plaintiff has presented no factual allegations connecting any

of these three persons with a violation of his constitutional rights. See Mayorga, 442 F.3d at 1132

(stating that 42 U.S.C. § 1983 liability “requires a causal link to, and direct responsibility for, the

deprivation of rights”). Indeed, aside from identifying these officials, and noting the amount of

monetary compensation he wants from each, plaintiff provides no factual allegations against them.

Simply listing a person as a defendant is not enough to assert their responsibility. See Allen v.

Purkett, 5 F.3d 1151, 1153 (8" Cir. 1993) (agreeing with district court dismissal of two defendants

who were named as defendants in the complaint, but who had no factual allegations made against

them); and Krych v. Hvass, 83 Fed. Appx. 854, 855 (8" Cir. 2003) (agreeing with district court

dismissal of defendants who were merely listed in the complaint, and who were not alleged to have

been personally involved in the constitutional violations). Therefore, the individual capacity claims

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against the member of the House of Representatives and the two United States Senators must be

dismissed.

F. Motion to Appoint Counsel

In the body of his complaint, plaintiff moves for the appointment of counsel. (Docket No.

1 at 1). The motion will be denied as moot as this action is being dismissed without prejudice. See

28 U.S.C. § 1915(e)(2)(B).

Accordingly,

IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma pauperis

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 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 Le day of Yo de , 2021.

2 Lu

Segre litle IE L. WHITE

UNITED STATES DISTRICT JUDGE

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