Lorenz v. Missouri Department of Corrections - Bonne Terre, MO

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JEREMY CHASE LORENZ, )

)

Plaintiff, )

)

v. ) Case No. 4:21 CV 533 MTS

)

MISSOURI DEPARTMENT OF )

CORRECTIONS, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on the motion of self-represented plaintiff Jeremy Chase

Lorenz, an inmate at Eastern Reception Diagnostic and Correctional Center (“ERDCC”), for leave

to commence this civil action without payment of the required filing fee. Doc. [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 $111.90. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the

Court will allow plaintiff the opportunity to submit an amended complaint.

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, 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 inmate account statement. Doc. [3]. A review of plaintiff’s account indicates an average

monthly deposit of $559.50 and an average monthly balance of $11.39. Plaintiff has insufficient

funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of

$111.90, which is 20 percent of plaintiff’s average monthly deposit.

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e), 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, 678 (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 on its 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 a court must accept factual allegations in the complaint as true but is not

required to “accept as true any legal conclusion couched as a factual allegation”).

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When reviewing a complaint filed by a self-represented person under 28 U.S.C. § 1915,

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 self-represented complainants 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) (refusing to supply additional facts

or to construct a legal theory for the self-represented plaintiff that assumed facts that had not been

pleaded). In addition, affording a self-represented complaint the benefit of a liberal construction

does not mean that procedural rules in ordinary civil litigation must be interpreted to excuse

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

(1993).

The Complaint

Plaintiff, an inmate at ERDCC, brings this action pursuant to 42 U.S.C. § 1983 alleging

that defendants violated his constitutional rights by initiating inappropriate sexual contact and

using excessive force. Named as defendants are the Missouri Department of Corrections

(“MDOC”) and correctional officers Dennis Spradling and Unknown Downs. Plaintiff sues

defendants in their official capacities only.

Plaintiff alleges that on April 12, 2021 plaintiff was “handcuffed for no reason on [his] way

to work in the kitchen.” Plaintiff states an unidentified individual “accused [him] of being visually

high because [he] was being smart mouthed about them harassing [him] so early.” Doc. [1] at 3.

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Plaintiff was subsequently “found guilty of Violation 11.5 ‘visually’ being high” and transferred

to administrative segregation. Id. at 4.

Plaintiff alleges that on April 22, 2021, while in administrative segregation, defendant

Downs “got tired” of plaintiff talking and told plaintiff “if [he] did not ‘shut up’ [he would] be

slammed on [his] face[.]” Id. at 5. Plaintiff states that he “refused to be silenced” and was

subsequently “slammed on [his] face with handcuffs behind [his] back.” Id. Plaintiff then alleges

“two officers” escorted him to 1-D-214 where they cut his shirts “from the neck area while [his]

hands were still handcuffed and used the shirts like a leash around [his] waist” and “slammed” him

against a wall. Id. Plaintiff alleges Officer Spradling pulled down plaintiff’s pants and underwear

and took off his boots. Id. Plaintiff states defendant Downs “proceeded to put his finger in [his]

butt while laughing at [him] about [his] penis.” Id. Plaintiff screamed for them to stop and after

“a couple of minutes” the officers removed his clothes and handcuffs and left him in the cell naked

“for hours.” Id. Plaintiff states he filed a Prison Rape Elimination Act (“PREA”) complaint after

the incident. Id.

Plaintiff further alleges that on April 24, 2021, defendant Spradling refused to grant him

his one-hour recreation time. Id. at 4. Plaintiff states that defendant Spradling should not be

assigned to his wing as a result of the PREA violation he filed. Id.

Plaintiff seeks monetary relief in the amount of $5,000,000 for the sexual and physical

assault. Id. at 6.

Discussion

Having thoroughly reviewed and liberally construed plaintiff’s complaint, the Court

concludes that it is subject to dismissal. However, in consideration of plaintiff’s self-represented

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status and serious nature of the allegations in the complaint, the Court will allow him to file an

amended complaint.

A. Claim against the Missouri Department of Corrections

Plaintiff’s complaint is legally frivolous against the MDOC because it cannot be sued under

§ 1983. The MDOC is a department of the State of Missouri. Suing the MDOC is the same as

suing the State of Missouri itself. As such, plaintiff’s claim against the MDOC is subject to

dismissal 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.

1. 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, plaintiff has sued the MDOC. A claim against a department of the State is treated as

being made against the State. 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, his claim against the MDOC is subject to dismissal.

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2. Sovereign Immunity

“Sovereign immunity is the privilege of the sovereign not to be sued without its consent.”

Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011). The Eleventh Amendment

has been held to confer immunity on an un-consenting state from lawsuits brought in federal court

by 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) (stating that district court erred in allowing the 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 62, 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

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text as will leave no room for any other reasonable construction.” Welch v. Tex. Dep’t of Highways

& Pub. Transp., 483 U.S. 468, 473 (1987). Neither exception is applicable in this case.

The first exception is inapplicable because the Supreme Court has determined that § 1983

does not revoke a state’s Eleventh Amendment immunity from suit in federal court. See Will, 491

U.S. at 66 (“We cannot conclude that § 1983 was intended to disregard the well-established

immunity of a State from being sued without its consent”); and Quern v. Jordan, 440 U.S. 332,

341 (1979) (“[W]e simply are unwilling to believe . . . that Congress intended by the general

language of § 1983 to override the traditional sovereign immunity of the States”). The second

exception is also inapplicable because the State of Missouri has not waived its sovereign immunity

in this type of case. See Mo. Rev. Stat. 537.600 (explaining that sovereign immunity is in effect

and providing exceptions).

In this case, plaintiff has named the MDOC as a defendant. As noted above, the Eleventh

Amendment bars suit against a state or its agencies for both monetary and injunctive relief.

Furthermore, no exceptions to sovereign immunity are present in this case. Therefore, plaintiff’s

claim against the MDOC is subject to dismissal for this reason as well.

B. Official Capacity Claims Against Defendants Spradling and Downs

Plaintiff also brings this action against defendants Spradling and Downs in their official

capacities only. Plaintiff’s official capacity claims are also subject to dismissal because 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 a sheriff and his deputy “must be treated as a suit against the County”); Kelly v. City of

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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”).

In this case, the defendant correctional officers are alleged to be employees of the MDOC

and, therefore, are employees of the State of Missouri. 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

“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).

Plaintiff has not brought this action against the defendant correctional officers in their

individual capacities. As such, the Court will not review plaintiff’s complaint under 28 U.S.C.

§ 1915 as to whether it can survive initial review against the named defendants in their individual

capacities. However, in consideration of plaintiff’s self-represented status and the severity of the

allegations, the Court will permit him to file an amended complaint. If plaintiff wishes to sue

defendants in their individual capacities, plaintiff must specifically say so in the amended

complaint. If plaintiff fails to sue defendants in their individual capacities, this action may be

dismissed after this Court’s review of his amended complaint.

Instructions on Amending the Complaint

Plaintiff is warned that the filing of his amended complaint replaces the original complaint,

and so it must include all claims plaintiff wishes to bring. See In re Wireless Telephone Federal

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Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005) (“It is well-established that an

amended complaint supersedes an original complaint and renders the original complaint without

legal effect”). Plaintiff must type or neatly print the amended complaint on this Court’s prisoner

civil rights complaint form, which will be provided to him. See E.D. Mo. L.R. 45 – 2.06(A) (“All

actions brought by self-represented plaintiffs or petitioners should be filed on Court-provided

forms”).

In the “Caption” section of the amended complaint, plaintiff must state the first and last

name, to the extent he knows it, of each defendant he wishes to sue. See Fed. R. Civ. P. 10(a)

(“The title of the complaint must name all the parties”). Plaintiff must avoid naming anyone as a

defendant unless that person is directly related to his claim. Plaintiff must also specify whether he

intends to sue each defendant in his or her individual capacity, official capacity, or both.

In the “Statement of Claim” section, plaintiff should begin by writing the defendant’s

name. In separate, numbered paragraphs under that name, plaintiff should set forth a short and

plain statement of the facts that support his claim or claims against that defendant. See Fed. R. Civ.

P. 8(a). Each averment must be simple, concise, and direct. See id. Plaintiff must state his claims

in numbered paragraphs, and each paragraph should be “limited as far as practicable to a single set

of circumstances.” See Fed. R. Civ. P. 10(b). If plaintiff names a single defendant, he may set forth

as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a). If Plaintiff names more

than one defendant, he should only include claims that arise out of the same transaction or

occurrence, or simply put, claims that are related to each other. See Fed. R. Civ. P. 20(a)(2).

It is important that plaintiff allege facts explaining how each defendant was personally

involved in or directly responsible for harming him. See Madewell, 909 F.2d at 1208. Plaintiff

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must explain the role of the defendant, so that the defendant will have notice of what he or she is

accused of doing or failing to do. See Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848

(8th Cir. 2014) (stating that the essential function of a complaint “is to give the opposing party fair

notice of the nature and basis or grounds for a claim”). Furthermore, the Court emphasizes that the

“Statement of Claim” requires more than “labels and conclusions or a formulaic recitation of the

elements of a cause of action.” See Neubauer v. FedEx Corp., 849 F.3d 400, 404 (8th Cir. 2017).

Plaintiff must not amend a complaint by filing separate documents. Instead, he must file a single,

comprehensive pleading that sets forth her claims for relief.

Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. Doc. [4]. In civil cases, a self-represented

litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721

F.3d 940, 942 (8th Cir. 2013). See also Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998)

(stating that “[a] pro se litigant has no statutory or constitutional right to have counsel appointed

in a civil case”). Rather, a district court may appoint counsel in a civil case if the court is

“convinced that an indigent plaintiff has stated a non-frivolous claim . . . and where the nature of

the litigation is such that plaintiff as well as the court will benefit from the assistance of counsel.”

Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether to appoint

counsel for an indigent litigant, a court considers relevant factors such as the complexity of the

case, the ability of the self-represented litigant to investigate the facts, the existence of conflicting

testimony, and the ability of the self-represented litigant to present his or her claim. Phillips v.

Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006).

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After considering these factors, the Court finds that the appointment of counsel is

unwarranted at this time. Plaintiff has yet to file a complaint that survives initial review, so it

cannot be said that he has presented non-frivolous claims. Additionally, this case appears to

involve straightforward factual and legal issues, and there is no indication that plaintiff cannot

investigate the facts and present his claims to the Court.

The Court will therefore deny his motion without prejudice at this time. However, the Court

will entertain a future motion for appointment of counsel, if appropriate, as the case progresses.

Plaintiff may, at his discretion, file a second motion of appointment of counsel with his amended

complaint.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis, Doc.

[2], is DENIED.

IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $111.90 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 of Court shall mail to Plaintiff two blank

Prisoner Civil Rights Complaint forms. Plaintiff may request additional forms as needed.

IT IS FURTHER ORDERED that, within thirty (30) days of the date of this

Memorandum and Order, plaintiff shall submit an amended complaint in accordance with the

instructions set forth herein.

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IT IS FURTHER ORDERED that plaintiff's Motion to Appoint Counsel, Doc. [4] is

DENIED without prejudice at this time.

IT IS FURTHER ORDERED that if plaintiff fails to timely comply with this

Memorandum and Order, the Court will dismiss this action without prejudice and without further

notice.

Dated this 25th day of May, 2021

MATTHEW T. SCHELP

UNITED STATES DISTRICT JUDGE

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