Engel v. ERDCC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JOSEPH MICHAEL DEVON ENGEL, )

)

Plaintiff, )

)

v. ) No. 4:20-cv-01918-HEA

)

ERDCC, et al., )

)

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.1 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

1 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 writes: “Application to proceed in District Court without prepaying

fees [or] cost[s].” (Docket No. 1 at 1). The Court has construed this as a motion for leave to commence this civil action

without prepayment of the required filing fee.

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 submitted a copy

of his certified inmate account statement. (Docket No. 2). The account statement shows an average

monthly deposit of $28.21. 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 Missouri Eastern

Correctional Center in Pacific, Missouri. At the time relevant to this complaint, however, he was

an inmate at the Eastern Reception, Diagnostic and Correctional Center (ERDCC) in Bonne Terre.2

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

Eastern District of Missouri.

2 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, an inmate account statement, 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.

Plaintiff brings the instant action pursuant to 42 U.S.C. § 1983. His complaint is

handwritten and not on a Court form. In the complaint, plaintiff names forty-eight defendants,3

most identified only by job title or institution: (1) CO1; (2) CO2; (3) Sergeant; (4) Lieutenant; (5)

Corporal; (6) Captain; (7) Major; (8) Caseworker #1; (9) Caseworker #2; (10) Functional Unit

Manager; (11) Corrections Classification Assistant; (12) Institutional Parole Officer ERDCC; (13)

Institutional Parole Officer ERDCC Supervisor; (14) Probation and Parole; (15) Probation and

Parole Director; (16) Probation and Parole Assistant Director; (17) Assistant Superintendent; (18)

Superintendent; (19) Assistant Warden; (20) Warden; (21) Missouri Department of Corrections

(MODOC); (22) ERDCC; (23) MODOC Director; (24) MODOC Assistant Director; (25)

Assistant Attorney General; (26) Attorney General; (27) Lieutenant Governor; (28) Governor; (29)

Senator MO #1; (30) Senator MO #2; (31) House Rep MO; (32) Corizon Healthcare; (33) Corizon

Assistant Director; (34) Corizon Director; (35) Corizon MODOC ERDCC Director; (36) Corizon

MODOC Assistant Director; (37) Corizon Assistant Superintendent; (38) Corizon Superintendent;

(39) Corizon NR Ferguson; (40) Corizon Dr. Moody; (41) Corizon Registered Nurses; (42)

Corizon Licensed Nurse Practitioners; (43) Corizon Med Tecs; (44) MODOC Medical Services;

(45) CO1 Coklin; (46) CO1 Griffith; (47) CO1 Bing; and (48) Sergeant Kennon. (Docket No. 1 at

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

With regard to his claim, plaintiff asserts that he is bringing this action because his “medical

needs [are] being refused by Corizon staff at ERDCC.” (Docket No. 1 at 2). He also states that

there is something “wrong with [his] insides,” which feel like they are “on fire,” and that “they got

[him] on the top bunk.” Plaintiff notes that he is experiencing uncontrollable shakes, “the runs,”

3 In the case caption, plaintiff indicates that he is suing “44 Defendants on front page.” The so-called “front page” then

lists the forty-four defendants. The Court notes, however, that in addition to the forty-four defendants, plaintiff also

mentions four separate correctional officers by name in his “Statement of Claim.” The Court will treat these four

officers as additional defendants, for a total of forty-eight.

and hot and cold flashes. He alleges that CO1 Coklin, CO1 Griffith, CO1 Bing, and Sergeant

Kennon “all know,” though he does not elaborate on what he means.

As a result of this purported refusal of treatment, plaintiff states he has suffered “health

problems.” (Docket No. 1 at 1). He is seeking astronomical sums of damages, totaling many

hundreds of trillions of dollars. (Docket No. 1 at 2).

Discussion

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

1983, accusing forty-eight separate defendants of deliberate indifference to his medical needs, in

violation of the Eighth Amendment. Because plaintiff is proceeding in forma pauperis, the Court

reviewed his complaint under 28 U.S.C. § 1915. Based on that review, and for the reasons

discussed below, the Court will dismiss this action without prejudice. See 28 U.S.C. §

1915(e)(2)(B).

A. MODOC, MODOC Medical Services, and the ERDCC

Plaintiff has named MODOC, MODOC Medical Services, and the ERDCC as defendants.

MODOC is a department of the State of Missouri, MODOC Medical Services is apparently a unit

of the Department of Corrections, and 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. The

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 (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) (asserting that a “State

is not a person under § 1983”); and Kruger v. Nebraska, 820 F.3d 295, 301 (8th 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 MODOC, MODOC Medical Services, 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, these three claims

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 sovereign 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) (explaining 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 does not apply, 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 MODOC, MODOC Medical Services, and the ERDCC as

defendants. The claims against these defendants are treated as claims against the State of Missouri

itself. 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 action. Therefore, for this reason as well, plaintiff’s claims against these three

defendants must be dismissed.

B. Missouri Board of Probation and Parole

Plaintiff appears to be suing the Missouri Board of Probation and Parole, which he refers

to as “P&P.” He has not, however, presented any factual allegations against the Board.

Furthermore, even if he had, the members of the Board “are absolutely immune from suit when

considering and deciding parole questions.” See Figg v. Russell, 433 F.3d 593, 598 (8th Cir. 2006).

Therefore, this claim must be dismissed.

C. State of Missouri Employees

Plaintiff has named as defendants a total of twenty-nine individuals who are employed by

the State of Missouri. This number includes nineteen unnamed persons who appear to work for

MODOC; four named individuals who appear to work for MODOC; the Director and Assistant

Director of Probation and Parole; and four state officials. These defendants are sued 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 (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”).

As such, the official capacity claims against the State of Missouri employees are actually treated

as claims against the State of Missouri, which employs them.

The official capacity claims against the State of Missouri employees fail for two reasons.

First, as noted above, plaintiff cannot bring a claim for damages against the State of Missouri under

42 U.S.C. § 1983, because the state is not a § 1983 “person.” See Will, 491 U.S. at 71 (asserting

that “neither a State nor its officials acting in their official capacity are ‘persons’ under § 1983”).

Furthermore, “[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 (8th

Cir. 1999). Since plaintiff is seeking damages, rather than prospective injunctive relief, sovereign

immunity bars his claims. For these reasons, plaintiff’s official capacity claims against the State

of Missouri employees must be dismissed.

ii. Individual Capacity Claims Against Unnamed Persons

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 made no effort to connect the twenty-five unnamed State of Missouri

employees with any action or inaction violating his constitutional rights. To the contrary, there are

no allegations against these specific defendants whatsoever. Rather, each of these unnamed

defendants is merely listed in the complaint, alongside an enormous sum of damages. For example,

plaintiff seeks $10 billion from CO1, and $8 trillion from the Warden, without presenting a single

fact as to what either did or did not do to harm him. This holds true for the remaining unnamed

State of Missouri employee defendants as well. None of them are alleged to have taken any

inappropriate action, and none of them are alleged to have failed to act.

The only place in the complaint where these particular individuals appear is where they are

named as defendants. Simply naming a person as a defendant is not sufficient to assert their

responsibility. See Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993) (agreeing with district court

dismissal of two defendants who were identified as defendants in the complaint, but who had no

factual allegations made against them); and Krych v. Hvass, 83 Fed. Appx. 854, 855 (8th Cir. 2003)

(agreeing with district court dismissal of defendants who were merely listed in his complaint, and

who were not alleged to have been personally involved in the constitutional violations). For these

reasons, the individual capacity claims against the twenty-five unnamed State of Missouri

employees must be dismissed.

iii. Individual Capacity Claims Against Four Named Correctional Officers

Plaintiff’s individual capacity claims against the four named correctional officers must also

be dismissed. Under the Eighth Amendment, the government has an obligation to provide medical

care to those whom it is punishing by incarceration. Estelle v. Gamble, 429 U.S. 97, 103 (1976).

To demonstrate constitutionally inadequate medical care, the inmate must show that a prison

official’s conduct amounted to deliberate indifference. Dulany v. Carnahan, 132 F.3d 1234, 1237-

38 (8th Cir. 1997).

In order to establish deliberate indifference, a plaintiff must prove that he suffered from an

objectively serious medical need, and that prison officials actually knew of and disregarded that

need. Roberts v. Kopel, 917 F.3d 1039, 1042 (8th Cir. 2019). See also Hamner v. Burls, 937 F.3d

1171, 1177 (8th Cir. 2019). “A serious medical need is one that has been diagnosed by a physician

as requiring treatment, or one that is so obvious that even a layperson would easily recognize the

necessity for a doctor’s attention.” Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). Deliberate

indifference can include the intentional denial or delay of access to medical care, or the intentional

interference with treatment or prescribed medication. Vaughn v. Lacey, 49 F.3d 1344, 1346 (8th

Cir. 1995).

To prevail under this standard, an inmate must demonstrate that a prison health care

provider’s actions were “so inappropriate as to evidence intentional maltreatment or a refusal to

provide essential care.” Jackson v. Buckman, 756 F.3d 1060, 1066 (8th Cir. 2014). As such,

“deliberate indifference requires a highly culpable state of mind approaching actual intent.” Kulkay

v. Roy, 847 F.3d 637, 643 (8th Cir. 2017). Thus, a showing of deliberate indifference requires more

than a mere disagreement with treatment decisions and is greater than gross negligence. Gibson v.

Weber, 433 F.3d 642, 646 (8th Cir. 2006).

Here, plaintiff alleges that CO1 Coklin, CO1 Griffith, CO1 Bing, and Sergeant Kennon

“all know.” Though he is not clear on this point, it appears that he is referring to knowledge about

his medical issues. This is insufficient to demonstrate that these four defendants were deliberately

indifferent to plaintiff’s medical needs.

As noted above, to establish deliberate indifference, plaintiff must demonstrate that a

prison official’s actions were “so inappropriate as to evidence intentional maltreatment or a refusal

to provide essential care.” See Jackson, 756 F.3d at 1066. Plaintiff’s vague and truncated

allegations do not describe any actions on the part of these four defendants, much less anything

that could be construed as intentional maltreatment or a refusal to provide care. For example,

plaintiff presents no facts showing that these defendants delayed plaintiff from seeking medical

care, prevented plaintiff from seeking medical care, or interfered with plaintiff’s treatment in any

way. Therefore, the individual capacity claims against CO1 Coklin, CO1 Griffith, CO1 Bing, and

Sergeant Kennon must be dismissed.

D. 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

such a corporation, 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, plaintiff asserts that he has something “wrong with [his] insides,” which feel

like they are “on fire.” He also states he has “the runs,” uncontrollable shakes, and hot and cold

flashes. Even assuming that these symptoms constitute an objectively serious medical need,

plaintiff has not demonstrated that Corizon is liable to him for violating his constitutional rights

by failing to treat him.

To begin, plaintiff’s claim that his “medical needs [are] being refused by Corizon staff at

ERDCC” is too ambiguous to provide any indication as to what actually occurred. For example, it

is impossible to know whether plaintiff is alleging that he was entirely denied medical care, that

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

from this brief and imprecise 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 (8th 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 Corizon’s liability.

Aside from his conclusion that he has been “refused” his “medical needs,” there is no other

mention of Corizon in the complaint. Certainly, there are no facts identifying any Corizon policy,

custom, or official action, much less that a policy, custom, or official action caused him an injury.

Furthermore, 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.

E. Corizon Employees

Plaintiff has listed eleven separate Corizon employees as defendants. Two of these

defendants are named, while the balance are identified by job title only. These eleven defendants

are sued in both their official and individual capacities.

i. Official Capacity Claims

As noted above, a “suit against a public employee in his or her official capacity is merely

a suit against the public employer.” Johnson, 172 F.3d at 535. Thus, a suit against the Corizon

defendants in their official capacities is actually a suit against Corizon itself, their employer.

However, as previously explained, plaintiff has failed to state a claim against Corizon, because he

has not established that he suffered an injury due to a Corizon policy, custom, or official action.

See Stearns, 957 F.3d at 906 (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”). Therefore, the official capacity claims against the Corizon employees must be

dismissed.

ii. Individual Capacity Claims

In order to assert liability against the Corizon employees in their individual capacities,

plaintiff must establish “a causal link to, and direct responsibility for, the deprivation of rights.”

Mayorga, 442 F.3d at 1132. As with the State of Missouri employees, however, plaintiff has

presented no factual allegations concerning these defendants. Instead, he has merely listed them

alongside the amount of money he wants from each. For example, plaintiff identifies Dr. Moody

as a defendant, and seeks $1,400 trillion in damages. Dr. Moody is not mentioned in the “Statement

of Claim” or anywhere else. This holds true for the remaining Corizon employees as well. Simply

placing a defendant’s name in the case caption, or listing someone as a defendant, is not enough

to assert their responsibility. See Allen, 5 F.3d at 1153 (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, 83 Fed. Appx. at 855 (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

against the Corizon employees must be dismissed.

F. United States Elected Officials

Plaintiff has listed an unnamed member of the House of Representatives, and two Senators

as defendants. The Court has construed these claims as being made against United States elected

officials. These three defendants are sued 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 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 (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. Therefore,

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

and the two Senators must be dismissed.

ii. Individual Capacity Claims

As noted above, 42 U.S.C. § 1983 liability “requires a causal link to, and direct

responsibility for, the deprivation of rights.” Mayorga, 442 F.3d at 1132. Here, plaintiff has made

no attempt to demonstrate any linkage between an action or inaction on the part of any of these

three defendants, and the purported violation of his right to medical care under the Eighth

Amendment. Not only has plaintiff failed to present any factual allegations, it is difficult to imagine

what personal responsibility a member of the House of Representatives and two Senators could

have with regard to plaintiff’s healthcare while incarcerated in a state prison. Therefore, the

individual capacity claims against these three defendants must be dismissed.

G. 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 $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 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 20th day of May, 2021.

UNITED STATES DISTRICT JUDGE

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