Dinkins v. State of MO

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ROBERT O. DINKINS, )

)

Plaintiff, )

)

v. ) No. 4:21-cv-00399-JAR

)

STATE OF MO, et al., )

)

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Robert O. Dinkins for leave

to commence this civil action without prepayment of the required filing fee. (Docket No. 2).

Having reviewed the motion, the Court has determined that plaintiff lacks sufficient funds to pay

the entire filing fee, and 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. See 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 or her

prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial

partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner’s

account, or (2) the average monthly balance in the prisoner’s account for the prior six-month

period. After payment of the initial partial filing fee, the prisoner is required to make monthly

payments of 20 percent of the preceding month’s income credited to the prisoner’s account. 28

U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these monthly

payments to the Clerk of Court each time the amount in the prisoner’s account exceeds $10.00,

until the filing fee is fully paid. Id.

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

1915(a)(2), stating that prison officials will not provide him an “account print out.” (Docket No.

2). Nevertheless, having reviewed the information contained in the motion, the Court will require

plaintiff to pay an initial partial filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481, 484

(8th Cir. 1997) (explaining that when a prisoner is unable to provide the court with a certified copy

of his inmate 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, 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 United States

Penitentiary in Atlanta, Georgia. He has filed a complaint that is titled “Totality – Human Rights

Violation Action [and] Habeas Corpus.” (Docket No. 1 at 1). The complaint is handwritten and

not on a Court-provided form. Though plaintiff mentions habeas corpus,1 he purports to bring this

action under the Federal Tort Claims Act (FTCA), Title II of the Americans with Disabilities Act

1 Just a month after filing the instant action on April 5, 2021, plaintiff submitted a document titled “Motion of 18

U.S.C. § 3742 Consideration Pursuant to Federal Habeas Corpus,” in which he stated that he was “appealing his

sentence” due to various constitutional violations. This action was filed in his criminal case, later docketed as a motion

to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, and dismissed as successive. See Dinkins v. United

States, No. 4:21-cv-517-ERW (E.D. Mo. May 5, 2021). Because the instant case is styled as a complaint and appears

to allege civil rights violations, it has not been construed as a habeas action.

(ADA), 28 U.S.C. §§ 241-242, negligence, and “comparative tort.” Plaintiff names the following

defendants: the State of Missouri, the Federal Bureau of Prisons, “judge,” and “attorney.”

With regard to a “Statement of Claim,” plaintiff asserts that he has filed this complaint

because his “attorney is unethical, ineffective,” and deliberately failed to timely draft a

supplemental compassionate release motion to support a motion plaintiff had previously filed.2

(Docket No. 1 at 2). He further states that the attorney did not incorporate and submit medical

records to the judge, failed to adequately communicate with him, failed to ensure that “calls” from

family and friends were “accepted for evidence and testimony purposes,” and for unspecified

delays. Based on this, plaintiff alleges that his attorney subjected him to cruel and unusual

punishment, “excessive confinement,” negligent medical treatment, and discrimination, in

violation of the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.

As to the judge, plaintiff again asserts violations of the First, Fourth, Fifth, Sixth, Eighth,

and Fourteenth Amendments, as well as negligence. (Docket No. 1 at 3). In particular, plaintiff

states that he is “at risk of catching[,] dying [and] suffering from COVID-19.” (Docket No. 1 at

2). Instead of ruling on plaintiff’s compassionate release motion, however, plaintiff states that the

judge “appointed [him] a[n] unethical attorney” who failed to meet appropriate standards and had

“a history of fraud.” (Docket No. 1 at 2-3).

Though he does not name it as a defendant, plaintiff accuses the United States Court of

Appeals for the Eighth Circuit of “deliberately overlooking [and] covering up” prior claims that

he has made. Those claims include compassionate release, bias, due process, “Rehaif,”3 and his

2 The Court notes that plaintiff’s attorney filed a supplemental motion for relief under the First Step Act on April 20,

2021. United States v. Dinkins, No. 4:15-cr-314-ERW (E.D. Mo.). Both plaintiff’s original motion and the

supplemental motion were denied on July 29, 2021.

3 Plaintiff appears to be referring to the United States Supreme Court’s decision in Rehaif v. United States, 139 S.Ct.

2191 (2019).

allegations against the Missouri Secretary of State and the St. Louis Police Department. (Docket

No. 1 at 3).

With regard to the Federal Bureau of Prisons, plaintiff contends that it has failed to respond

to plaintiff’s compassionate release motions, and has generally failed to discuss the “reasonable

accommodation of medical release,” in violation of the ADA. (Docket No. 1 at 4). In particular,

plaintiff complains that he has been refused the Johnson & Johnson vaccine and denied access to

“herbal treatment per [his] religion.” Mainly, though, he appears to rest his claim on the fact that

he has not been released from custody.

Based on these allegations, plaintiff asks the Court to review his prior compassionate

release and Rehaif claims, appoint a new lawyer, and hold a hearing. (Docket No. 1 at 5).

Discussion

Plaintiff is a self-represented litigant who brings this civil action against the State of

Missouri, the Federal Bureau of Prisons, his trial judge, and his attorney. Because plaintiff is

proceeding in forma pauperis, the Court has reviewed his complaint pursuant to 28 U.S.C. § 1915.

Based on that review, and for the reasons discussed below, this case will be dismissed without

prejudice.

A. FTCA

Plaintiff asserts that his case arises in part under the FTCA. The FTCA “waives federal

sovereign immunity for injuries caused by the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of his office or employment, under

circumstances where the United States, if a private person, would be liable.” Newcombe v. United

States, 933 F.3d 915, 917 (8th Cir. 2019). The FTCA acts as a limited waiver of sovereign

immunity, which opens the door to state-law liability claims against the federal government for

harm cause by a governmental employee. Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir.

2019). Pursuant to statute:

An action shall not be instituted upon a claim against the United

States for money damages for injury or loss of property or personal

injury or death caused by the negligent act or omission of any

employee of the Government while acting within the scope of his

office of employment, unless the claimant shall have first presented

the claim to the appropriate Federal agency and his claim shall have

been finally denied by the agency in writing and sent by certified or

registered mail.

28 U.S.C. § 2675(a). Complete exhaustion of administrative remedies is required before the

judicial process is invoked. McNeil, 508 U.S. at 112. Exhaustion of administrative remedies is a

jurisdictional prerequisite. Porter v. Fox, 99 F.3d 271, 274 (8th Cir. 1996). That is, before bringing

an action against the United States, a claimant must present his or her claim to the appropriate

federal agency, and the agency must make a final decision. Bohac v. Walsh, 386 F.3d 859, 861 (8th

Cir. 2004). Failure to comply with the exhaustion requirement will result in the dismissal of the

suit for lack of subject-matter jurisdiction. See Mader v. United States, 654 F.3d 794, 808 (8th Cir.

2011) (concluding “that conformity with § 2675(a) is a jurisdictional term of the FTCA’s limited

waiver of sovereign immunity”). See also Allen v. United States, 590 F.3d 541, 544 (8th Cir. 2009)

(stating that “[a] federal district court does not have jurisdiction over an FTCA claim unless it was

first presented to the appropriate federal agency”).

Here, plaintiff has provided no indication that he has presented his claims to the appropriate

federal agencies, or that the agencies made a final decision. In other words, he has not

demonstrated exhaustion, which is a jurisdictional prerequisite for a claim under the FTCA. Thus,

his FTCA claims must be dismissed for lack of jurisdiction. Furthermore, plaintiff has not properly

alleged facts showing that an employee of the federal government caused him an injury by a

negligent or wrongful act or omission, under circumstances where the United States, if a private

person, would be liable. To the contrary, plaintiff’s vague and conclusory allegations chiefly

concern judicial rulings – specifically the denial of a motion for compassionate release – not

tortious conduct. For this reason, as well, plaintiff’s claims under the FTCA must be dismissed.

B. Title II of the ADA

Plaintiff also asserts a claim under Title II of the ADA. Under Title II of the ADA, “no

qualified individual with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs, or activities of a public entity,

or be subjected to discrimination by any such entity.” Power v. Univ. of North Dakota Sch. of Law,

954 F.3d 1047, 1052 (8th Cir. 2020) (quoting 42 U.S.C. § 12132). Pursuant to statute, “public

entity” is defined as “(A) any State or local government; (B) any department, agency, special

purpose district, or other instrumentality of a State or States or local government; and (C) the

National Railroad Passenger Corporation.” 42 U.S.C. § 12131. To state a prima facie ADA claim,

a plaintiff is required to demonstrate that “1) he is a person with a disability as defined by statute;

2) he is otherwise qualified for the benefit in question; and 3) he was excluded from the benefit

due to discrimination based upon disability.” Randolph v. Rogers, 170 F.3d 850, 858 (8th Cir.

1999).

Here, plaintiff has not presented facts demonstrating any of these elements. First, save for

a passing reference to an “underlying medical condition,” he has not identified his disability, or

shown that he is a “qualified individual with a disability” under the statute. Second, plaintiff has

not shown that he was qualified for the benefit in question, which in this case appears to be release

from prison. Finally, he has not established that the decision not to release him from prison on

compassionate release grounds was based on any type of discrimination, much less disability-

based discrimination. For all these reasons, plaintiff has failed to state a claim under Title II of the

ADA.

C. Bivens Claim

Aside from the FTCA and the ADA, plaintiff asserts claims under 28 U.S.C. §§ 241-242,

which is apparently a reference to 18 U.S.C. § 2414 and 18 U.S.C. § 242.5 Both § 241 and § 242

are federal criminal statutes, and neither provide a private right of action. See U.S. v. Wadena, 152

F.3d 831, 846 (8th Cir. 1998) (“Courts have repeatedly held that there is no private right of action

under [18 U.S.C.] § 241, even though the statute allows federal authorities to pursue criminal

charges”); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (stating that only a United States

prosecutor can bring a complaint under 18 U.S.C. §§ 241-242, and that the “statutes do not give

rise to a civil action for damages”); and Brown v. Express Scripts, 2018 WL 1295482, at *2 (E.D.

Mo. 2018) (dismissing plaintiff’s claim brought under 18 U.S.C. § 242 because plaintiff had no

private right of action).

Based on the contents of 18 U.S.C. §§ 241-242, however, the Court has construed these

claims as an attempt to bring a Bivens6 action. “A Bivens claim is a cause of action brought directly

under the United States Constitution against a federal official acting in his or her individual

capacity for violations of constitutionally protected rights.” Buford v. Runyon, 160 F.3d 1199, 1203

n.6 (8th Cir. 1998). “An action under Bivens is almost identical to an action under [42 U.S.C. §]

1983, except that the former is maintained against federal officials while the latter is against state

officials.” Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999). As such, claims under Bivens

4 18 U.S.C. § 241 is a criminal statute titled: “Conspiracy against rights.”

5 18 U.S.C. § 242 is a criminal statute titled: “Deprivation of rights under color of law.”

6 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 389 (1971).

and claims under § 1983 involve the same analysis. Solomon, 795 F.3d at 789 n.7. Furthermore,

the body of case law regarding § 1983 applies to Bivens actions. Id.

In this case, plaintiff appears to be asserting that both his attorney and judge violated his

constitutional rights due to actions taken in his federal criminal case. Specifically, plaintiff

suggests that his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments have been

violated because he has not been given compassionate release from prison.

i. Bivens Claim Against Attorney

Plaintiff has alleged that his defense attorney was ineffective in handling his motion for

compassionate release. However, a defense attorney is not suable under 42 U.S.C. § 1983 which

– as noted above – is almost identical to a Bivens action.

“The essential elements of a [42 U.S.C.] § 1983 claim are (1) that the defendant(s) acted

under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a

constitutionally protected federal right.” Green v. Byrd, 972 F.3d 997, 1000 (8th Cir. 2020).

However, a defense attorney, whether appointed or retained, does not act under color of state law,

and thus cannot be liable for the alleged deprivation of constitutional rights under § 1983. See Polk

Cty. v. Dodson, 454 U.S. 312, 325 (1981) (stating that “a public defender does not act under color

of state law when performing a lawyer’s traditional functions as counsel to a defendant in a

criminal proceeding”); Myers v. Vogal, 960 F.2d 750, 750 (8th Cir. 1992) (stating that attorneys

who represented plaintiff, “whether appointed or retained, did not act under color of state law and,

thus, are not subject to suit under section 1983”); and Rogers v. Bruntrager, 841 F.2d 853, 856 (8th

Cir. 1988) (“Public defenders do not act under color of state law for purposes of 42 U.S.C. § 1983

when performing the traditional functions of defense counsel”). Moreover, as relevant here,

“attorneys are not transformed into federal officials for purposes of a Bivens action merely because

they are appointed by a federal court pursuant to federal law.” Christian v. Crawford, 907 F.2d

808, 810 (8th Cir. 1990).

Because plaintiff has not shown that his defense attorney acted under color of law, he has

not stated a claim under Bivens. Therefore, the claim against plaintiff’s defense attorney must be

dismissed.

ii. Bivens Claim Against Judge

Plaintiff has sued the judge who presided over his federal criminal trial, alleging improper

handling of his motion for compassionate release. Because a judicial officer, exercising the

authority in which he or she is vested, should be free to act upon their own convictions, judicial

immunity provides a judge with immunity from suit. Hamilton v. City of Hayti, Missouri, 948 F.3d

921 (8th Cir. 2020). “Like other forms of official immunity, judicial immunity is an immunity from

suit, not just from ultimate assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11 (1991). This

immunity applies even when the judge is accused of acting maliciously or corruptly. Pierson v.

Ray, 386 U.S. 547, 554 (1967). See also Woodworth v. Hulshof, 891 F.3d 1083, 1090 (8th Cir.

2018) (stating that “judicial immunity is not overcome by allegations of bad faith or malice”).

Moreover, “a judge will not be deprived of his immunity because the action he took was in error

or was in excess of his authority.” Justice Network, Inc. v. Craighead Cty., 931 F.3d 753, 760 (8th

Cir. 2019).

A judge’s immunity from § 1983 actions bars a plaintiff’s recovery in all but two narrow

sets of circumstances. Schottel v. Young, 687 F.3d 370, 373 (8th Cir. 2012). First, a judge does not

have immunity for non-judicial actions. Duty v. City of Springdale, Ark., 42 F.3d 460, 462 (8th Cir.

1994). “An act is a judicial act if it is one normally performed by a judge and if the complaining

party is dealing with the judge in his judicial capacity.” Birch v. Mazander, 678 F.2d 754, 756 (8th

Cir. 1982). See also Justice Network, Inc., 931 F.3d at 760 (stating “that to determine whether an

act is judicial, courts look to the particular act’s relation to the general function normally performed

by a judge”).

Second, a judge is not immune from lawsuits based on actions taken in the complete

absence of jurisdiction. Duty, 42 F.3d at 462. This is the case even if the judge’s actions were

judicial in nature. Schottel, 687 F.3d at 373. In the context of judicial immunity, however, the

scope of the judge’s jurisdiction is construed broadly. Justice Network, Inc., 931 F.3d at 762. “[A]n

action – taken in the very aid of the judge’s jurisdiction over a matter before him – cannot be said

to have been taken in the absence of jurisdiction.” Mireles, 502 U.S. at 13.

In this case, plaintiff has presented no allegations to show that his trial judge took a non-

judicial action or acted in the complete absence of jurisdiction. Rather, plaintiff appears to take

issue with the lack of a favorable result from the motion for compassionate release that he filed.

Judicial immunity is meant to protect judges from this kind of suit. In other words, judicial

immunity protects a judge when making decisions during a case, even if his or her decisions were

malicious, corrupt, or erroneous. For these reasons, plaintiff’s claim against his trial judge must be

dismissed.

D. Negligence and “Comparative Tort”

Finally, plaintiff attempts set forth claims of negligence and “comparative tort.” As to

negligence, plaintiff has not demonstrated that the Court has federal question jurisdiction to hear

this claim. See Griffioen v. Cedar Rapids & Iowa City Ry. Co., 785 F.3d 1182, 1188 (8th Cir. 2015

(explaining that federal question jurisdiction gives district courts “original jurisdiction over civil

actions arising under the Constitution, laws, or treaties of the United States”). That is, negligence

does not give rise to a constitutional violation under either the Eighth or Fourteenth Amendments.

See Kingsley v. Hendrickson, 135 S.Ct. 2466, 2472 (2015) (stating that “liability for negligently

inflicted harm is categorically beneath the threshold of constitutional due process”); Daniels v.

Williams, 474 U.S. 327, 328 (1986) (stating that “the Due Process Clause is simply not implicated

by a negligent act of an official causing unintended loss of or injury to life, liberty, or property”);

and Standish v. Bommel, 82 F.3d 190, 191 (8th Cir. 1996) (stating that “mere negligence does not

violate the Eighth Amendment”). Regardless of jurisdiction, plaintiff has presented no facts

demonstrating the elements of a negligence action, such as the existence of a duty, and a

subsequent breach. Rather, he relies entirely on unsupported legal conclusions, which the Court is

not required to accept as true. 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”).

Likewise, as noted in the section on the FTCA, plaintiff has presented no factual allegations

regarding tortious conduct. It is not enough for plaintiff to assert that a tort was committed. Instead,

he must present some factual support for this proposition. See Wiles v. Capitol Indem. Corp., 280

F.3d 868, 870 (8th Cir. 2002) (“While the court must accept allegations of fact as true…the court

is free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping

legal conclusions cast in the form of factual allegations”). He has not done so. Therefore, his claim

of “comparative tort” must be dismissed.

E. Claim Against the State of Missouri

Plaintiff has named the State of Missouri as a defendant. Any claim against the state,

however, is barred 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 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 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.

First, plaintiff points to no statutory abrogation of sovereign immunity. To the extent that

this claim can be construed as arising under 42 U.S.C. § 1983, the Supreme Court has determined

that § 1983 does not revoke a state’s Eleventh Amendment immunity from suit in federal court.

See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989) (“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”). Second, the State of Missouri has not waived its immunity in

this type of civil action. See Mo. Rev. Stat. § 537.600 (asserting the state’s sovereign immunity,

and providing exceptions).

As discussed above, sovereign immunity bars suit against a state for any type of relief.

Furthermore, plaintiff has not demonstrated that either of the two exceptions to sovereign

immunity applies to him. Therefore, the claim against the State of Missouri must be dismissed.

F. Claim Against the Federal Bureau of Prisons

Plaintiff has identified the Federal Bureau of Prisons as a defendant, broadly alleging that

it has failed to respond to his compassionate release motion, failed to give him the Johnson &

Johnson vaccine, and denied him access to “herbal treatment.” Like the claim against the State of

Missouri, this one is also barred by the doctrine of sovereign immunity.

“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”).

As discussed above, plaintiff asserts that his claims arise in part under the FTCA. The

FTCA removes the sovereign immunity of the United States from suits in tort. See White v. United

States, 959 F.3d 328, 332 (8th Cir. 2020) (explaining that the “FTCA waives sovereign immunity

and allows the government to be held liable for negligent or wrongful acts by federal employees

committed while acting within the scope of their employment”). Nevertheless, as discussed above,

plaintiff’s allegations do not establish that the FTCA is applicable in this case. As such, it does not

provide a waiver to immunity. Because plaintiff provides no other basis upon which sovereign

immunity has been expressly waived, his claim against the Federal Bureau of Prisons must be

dismissed.

Even if the Federal Bureau of Prisons was not immune from suit, plaintiff has not stated a

claim against it. In order to state a claim, a plaintiff must demonstrate a plausible claim for relief,

which is more than a “mere possibility of misconduct.” Ashcroft, 556 U.S. at 679. That is, the

complaint must contain enough factual allegations to raise a right to relief above the speculative

level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). See also Torti, 868 F.3d at 671

(“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”). “While

the court must accept allegations of fact as true…the court is free to ignore legal conclusions,

unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form

of factual allegations.” Wiles, 280 F.3d at 870. Moreover, “[t]he essential function of a complaint

under the Federal Rules of Civil Procedure is to give the opposing party fair notice of the nature

and basis or grounds for a claim, and a general indication of the type of litigation involved.”

Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8" Cir. 2014).

Nothing in the complaint provides any indication that the Federal Bureau of Prisons

violated plaintiff's rights or harmed him in any way. Instead of providing factual allegations,

plaintiff gives only broad statements, vague assertions, and legal conclusions regarding the

handling of his compassionate release motion, vaccinations, and herbal remedies. Plaintiff's

allegations, such as they are, do not raise a right to relief above the speculative level. For this

reason as well, the claim against the Federal Bureau of Prisons must be dismissed.

Accordingly,

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

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial 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 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 23rd day of August, 2021.

solo fou

OHN

UNITED STATES DISTRICT JUDGE

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