Jones v. Ware

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JOHNIE FRANK JONES, et al. )

)

Plaintiffs, )

)

v. ) No. 4:21-cv-1012-JMB

)

TIM WARE, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on the applications of self-represented plaintiffs Johnie Frank

Jones (“Jones”), Rozina Rhonda Jones Williams (“Ms. Williams”), J.E.W., IV (“J.E.W.”), and

Maurice Campbell (“Campbell”) to proceed in the district court without prepaying fees and costs.1

Having reviewed the applications and the financial information submitted in support, the Court will

grant the applications. Additionally, for the reasons discussed below, the Court will dismiss without

prejudice all claims brought against defendants Joseph Wolf, Karen Schmitt, MK Property

Managements, LLC, Bank of New York Mellon Trust Company, N.A., St. Louis County Police

Department, Matthew Hearne, Mark Harder, Millsap & Singer, LLC, Reinker & Hamilton, Fenley,

LLC, Bonnie L. Clair, Charles Riske, the United States of America, and Robert E. Eggmann. The

Court will dismiss without prejudice plaintiffs J.E.W. and Smite the Blight Community Church.

Finally, the Court will order plaintiffs Jones, Ms. Williams, and Campbell to file an amended

complaint.

1 Maurice Campbell refers to Rozina Rhonda Jones Williams as Ms. Jones. See Compl., ECF No.

1 at 5A-5H. Rozina Rhonda Jones Williams refers to herself as Rozina Williams. See id. at 5H-5L.

For clarity and ease of reference, the Court will refer to Rozina Rhonda Jones Williams as Ms.

Williams. Ms. Williams is the daughter of Johnie F. Jones, the mother of J.E.W., IV, and the fiancée

of Maurice Campbell.

Legal Standard on Initial Review

This Court is required to review complaint filed in forma pauperis, and must dismiss it if it

is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.

§ 1915(e)(2). An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v.

Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon which relief may be

granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell

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

A claim is facially plausible when the plaintiff “pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). Although a plaintiff need not allege facts in painstaking detail,

the facts alleged “must be enough to raise a right to relief above the speculative level.” Twombly,

550 U.S. at 555. This standard “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Iqbal, 556 U.S. 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 assume the veracity of well-pleaded

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

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

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

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

“construe the complaint in a way that permits the layperson’s claim to be considered within the

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

Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even pro se complaints must allege facts

which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286

(8th Cir. 1980). Federal courts are not required to assume facts that are not alleged, Stone, 364 F.3d

at 914-15, nor are they required to interpret procedural rules so as to excuse mistakes by those who

proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

Background

Plaintiffs Jones, Ms. Williams, J.E.W., Campbell, and Smite the Blight Community Church

bring this civil action arising out of an eviction that occurred on July 20, 2021, at 319 Wild Horse

Canyon Drive in Wildwood, Missouri. In their complaint, plaintiffs allude to an underlying

Missouri state court proceeding for unlawful detainer and an underlying bankruptcy proceeding

pending in the United States Bankruptcy Court for the Eastern District of Missouri. Both the

unlawful detainer proceeding and the bankruptcy proceeding are relevant to the issues alleged in the

complaint. For this reason, the Court will briefly provide some background on those proceedings

based on publicly available documents.2

On March 11, 2021, the Bank of New York Mellon Trust Company (the “Bank”) filed a

petition in unlawful detainer in Missouri state court against Adeluola Gbolahan Lipede,3 Shawn

Ann Forseth, and John Doe. See Bank of New York Mellon v. Lipede, No. 21SL-AC05837 (21st

Jud. Cir. Mar. 11, 2021) (“unlawful detainer case”). In its petition, the Bank alleged it had the legal

right of possession to the real property known as 319 Wild Horse Canyon Drive, Wildwood,

2 Plaintiffs’ underlying state court case was reviewed on Case.net, Missouri’s online case

management system, and the bankruptcy case was reviewed through the Public Access to Court

Electronic Records, PACER. The Court takes judicial notice of these public records. See Levy v.

Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (explaining that district court may take judicial notice of

public state records); and Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (stating that

courts “may take judicial notice of judicial opinions and public records”).

3 According to the United States Bankruptcy Court for the Eastern District of Missouri, Adeloula

Gbolahan Lipede is also known as Johnie Frank Adeluola Lipede Jones, Johnie Frank Jones, Rhonda

Rozina Jones Williams, and Rhonda Rozina Williams. See In re: Johnie Frank Adeluola Lipede

Jones, No. 21-42104 (Bankr. E.D. Mo. 2021).

Missouri 63005. The Bank had purchased the property on February 5, 2021, in connection with a

trustee’s sale conducted pursuant to a deed of trust. Id.

On May 26, 2021, in the unlawful detainer case, Ms. Williams filed a motion to set aside the

February 5, 2021 trustee’s sale. In the motion, Ms. Williams asserted that she was the “Trustee and

Possessor of Land and Title Aboriginal title of Ancestral Land situated in the County of St. Louis

and State of Missouri.” Ms. Williams signed an affidavit that she was the “adverse possessor” of

319 Wild Horse Canyon Drive. The state court added Ms. Williams as a defendant to the unlawful

detainer case. The Bank opposed Ms. Williams’s motion to set aside, stating that it was frivolous

and without merit. Before Ms. Williams’s motion to set aside the sale could be heard, the Bank

filed a motion for a temporary restraining order (“TRO”), which would allow it to remove

defendants, including Ms. Williams, from the property.

On July 1, 2021, the Missouri state court issued a TRO in the unlawful detainer case. The

TRO ordered, among other things, that defendants including Ms. Williams were not allowed on the

property at 319 Wild Horse Canyon Drive and that defendants and all associates “shall be removed

from the property . . . by the appropriate law enforcement personnel.”

Meanwhile, on June 1, 2021, debtor Johnie Frank Adeluola Lipede Jones (a/k/a Johnie Frank

Jones, a/k/a Rhonda Rozina Jones Williams, d/b/a Smite the Blight Community) had filed a Chapter

7 Petition for Bankruptcy in the United States Bankruptcy Court for the Eastern District of Missouri.

See In re: Johnie Frank Adeluola Lipede Jones, No. 21-42104 (Bankr. E.D. Mo. 2021) (“Bankruptcy

Case”). In Part 4 of the bankruptcy petition, Jones reported that he had property located at 319 Wild

Horse Canyon, St. Louis, Missouri 63005 that needed immediate attention because “[i]t’s under

Aboriginal Land title 8 U.S.C. § 1401(b) 23 Congress Sess 1 Ch. 161 1834 pg 733 St. Louis Record

of Deed 2016101400874 been in adverse possession since 2012.”4 Pursuant to the bankruptcy law,

the filing of this bankruptcy petition automatically stayed the underlying state court unlawful

detainer case.

On July 7, 2021, MK Property Management, LLC and Reinker, Hamilton & Fenley LLC

filed a motion for relief from the automatic stay in the bankruptcy court as to 319 Wild Horse

Canyon Drive. In that motion, the movants alleged that Ms. Williams and other unidentified

associates had been squatting upon the property after its rightful owners absconded to Nigeria after

they were indicted on six counts of federal narcotics charges. See Bankruptcy Case at ECF No. 22.

If granted, this motion for relief from the stay would allow the plaintiffs in the unlawful detainer

case to enforce the TRO and remove Ms. Williams and the other individuals from 319 Wild Horse

Canyon Drive.

On July 20, 2021, the bankruptcy court issued an order granting in part the motion for relief

from automatic stay. The order terminated the automatic stay provisions of the bankruptcy code

and allowed movants to enforce their state law rights against Ms. Williams in the underlying

unlawful detainer case. That is, the bankruptcy court’s order allowed movants to enforce the TRO

and evict Ms. Williams and any other individuals from the property. See Bankruptcy Case at ECF

No. 55.

4 According to the docket sheet in Jones’s Chapter 7 bankruptcy proceeding, Jones had filed for

bankruptcy four times prior to this filing in the United States Bankruptcy Court for the Eastern

District of Missouri, see Case Nos. 12-49424, 13-50475, 15-40964, and 19-44555. See In re: Johnie

Frank Adeluola Lipede Jones, No. 21-42104 (E.D. Mo. Bankr. 2021).

The Complaint

On August 12, 2021, plaintiffs Jones, Ms. Williams, J.E.W., Campbell, and Smite the Blight

Community Church filed this civil action.5 Plaintiffs name as defendants the following sixteen

individuals and entities: Tim Ware; Steve DeGhelder; Unknown Brown; Joseph Wolf; Karen

Schmitt; MK Property Managements, LLC; Bank of New York Mellon Trust Company, N.A; St.

Louis County Police Department; Matthew Hearne; Mark Harder; Millsap & Singer, LLC; Reinker

& Hamilton, Fenley, LLC; Bonnie L. Clair; Charles Riske; the United States of America; and Robert

E. Eggmann.

According to the complaint, on July 20, 2021 between 10 a.m. and 11 a.m., police knocked

on the front door of the residence at 319 Wildhorse Canyon Drive.6 Plaintiff Campbell was cooking

breakfast, and walked to the front door asking, “Who is it?” The police identified themselves and

ordered Campbell to exit the residence through the rear doors with his hands up. At this point,

Campbell saw about six officers standing on the front steps with machine guns aimed at the front

doors. Campbell identified himself and told police that there was a veteran (Jones) and a thirteen-

year-old boy (J.E.W.) in the house. Before leaving the house, Campbell notified Jones and J.E.W.

that the police were outside and were asking them to leave the house through the back door with

their hands up.

Campbell left the house through the back door and lit a cigarette. Officer Brown told

Campbell to put his hands up. While handcuffing Campbell, Officer Brown told him he was being

detained until the police were able to get the other residents out of the house. At some point, J.E.W.

5 The first several pages of the complaint are written by Campbell. See Compl., ECF No. 1 at 5A-

5H. The last four pages of the complaint are written by Ms. Williams. See id. at 5H-5L. All four

individual plaintiffs appear to have resided at 319 Wild Horse Canyon Drive on July 20, 2021.

6 Page 15 of the complaint mistakenly states this date as June 30, 2021.

followed the officers’ instructions and left the house through the back door. Officers Ware and

Brown told Campbell and J.E.W. to sit in the chairs on the patio. Upon questioning by Campbell,

Officer Ware said that he had a TRO from the court and was at the house on behalf of the “rightful

owner . . . to get anybody out who is in there.”

Officer Ware directed Officer Brown and two other officers to search the house. Campbell

again told the officers that Jones was in the house, was seventy-seven years old, bed-ridden due to

chronic obstructive pulmonary disease, and on supplemental oxygen therapy. According to

Campbell, the officers proceeded inside with machine guns.

Campbell states that at approximately this time a police helicopter appeared overhead. The

officers in the helicopter radioed to the officers on the ground, and Officer Ware radioed back stating

the identity of the individuals on the back patio. The helicopter then left. An unnamed sergeant

came to sit with Campbell and J.E.W. on the patio, and Officer Ware went inside the house to search.

After about twenty-five minutes, Campbell’s friend came to pick up Campbell, J.E.W, and

Jones. Officer Ware removed Campbell’s handcuffs. Campbell and J.E.W. were allowed to go

inside with the officers to grab some belongings and then an unnamed sergeant escorted them to

their friend’s truck. Eventually the officers brought Jones out of the house in his wheelchair to the

waiting truck of Campbell’s friend. As Campbell, J.E.W., and Jones were leaving with the family

friend, they saw Ms. Williams and Officer Ware in the street talking. Ms. Williams had not been at

the residence when the police arrived.

Up to this point in the complaint, Campbell had been narrating the events from his point of

view. Then the handwriting on the complaint changes and Ms. Williams begins narrating from her

point of view. According to Ms. Williams, she received a call from her father (Jones) that police

were at the house and were ordering him to leave. Ms. Williams drove home and saw Officer Ware,

a fire truck, and an ambulance. Officer Ware told Ms. Williams that the rightful owner of the house

brought a TRO and that police were there to give the owners back their house. Ms. Williams

informed Officer Ware that the TRO had expired and was void.

Ms. Williams then drove to the back of the home and, unbeknownst to the officers, entered

the home. She went upstairs and began to “go live of Facebook to let people know what was

happening.” At this point, she heard Karen Schmitt and her husband (presumably the owners of the

house) walking through the house, opening doors and drawers and looking around. According to

Ms. Williams, Ms. Schmitt then took a call from her attorneys. Ms. Jones overheard Ms. Schmitt’s

attorney say, “We have a mess who knew a juvenile would be involved and too bad a kid had to

experience, but it’s nothing we can’t clean up. So what [does] the house look like?”

Ms. Williams went back to live streaming on Facebook. Then she called 911 “to let the

police [know that] I have a break in, that someone is in my home roaming through my belongings

and had broke[n] in.” Ms. Williams then saw Officer DeGhelder and his partner run up to the house.

Ms. Williams hid under the bed. The officers began searching the house for her, “looking in closets

and breaking holes in walls looking for me tearing into the ceiling and vandalizing my home looking

for me.” Eventually the officers found Ms. Williams hiding under the bed.

Officer DeGhelder pointed a taser at Ms. Williams, put her in handcuffs, and “dragged me

out [of] my home with a taser aimed in my face.” Officers placed Ms. Williams in a patrol vehicle,

shackled her feet, and took her to the St. Louis County police station. The officers booked Ms.

Williams on a 24-hour hold, apparently anticipating charging her with trespassing. Ms. Williams

states that once she was released, however, Officer DeGhelder gave her a ticket summons to report

to “Wildwood police because the county failed to prosecute.” Ms. Williams alleges that these events

amounted to an illegal arrest.

For relief, plaintiffs seek monetary damages of varying amounts. Ms. Williams seeks $2.5

million; Campbell seeks $1.9 million; and J.E.W. seeks $3.5 million. It is unclear what damages

Jones seeks.

Discussion

Although the facts of the complaint are fairly straightforward, the complaint is legally

complex in that five self-represented plaintiffs are attempting to bring unspecified claims against

sixteen defendants. The Court will determine first which plaintiffs may proceed pro se in this action.

It will then turn to the question of whether these plaintiffs have stated viable claims against the

particular defendants.

(1) Plaintiff J.E.W.

Based on the complaint, plaintiff J.E.W. is the minor son of Ms. Williams. Minors cannot

bring actions in federal court. Likewise, non-attorney parents cannot litigate pro se on behalf of

their minor children, even if the child cannot then bring the claim themselves. See Crozier for A.C.

v. Westside Comm. Sch. Dist., 973 F.3d 882, 887 (8th Cir. 2020) (citing cases). Although courts

recognize an exception in the context of Social Security cases brought by parents on behalf of a

minor child, no exception to this rule has ever been recognized for a lawsuit such as this, which is

based on § 1983 or general state tort law. Id. For this reason, the Court will dismiss all claims

brought against defendants by plaintiff J.E.W. These claims will be dismissed without prejudice to

refiling by a licensed attorney.

(2) Plaintiff Johnie F. Jones

Plaintiff Johnie F. Jones was present at the house during the eviction and he appears to have

signed a duplicate last page of the complaint. See Compl. at 28-29. In the complaint, however,

Jones makes no allegations against any defendants. The complaint is drafted by Campbell and Ms.

Williams. Based on their narration of the events, the Court understands that Jones was present at

319 Wild Horse Canyon Drive and was led out of his residence by police officers on July 20, 2021.

Jones has made no allegations that any defendant violated any of his constitutional rights. While

Ms. Williams asserts that officers “entered into my home pulling AR-15 rifles on my . . . 77 year

old veteran disabled dad,” Ms. Williams cannot bring claims that are not her own. Miner v.

Brackney, 719 F.2d 954, 956 (8th Cir. 1983) (explaining that plaintiff did not have “standing to

assert” a constitutional claim on behalf of another person). Plaintiff Jones must allege defendants

violated his rights and must allege a personal loss. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th

Cir. 1985); see also 28 U.S.C. § 1654 (“In all courts of the United States the parties may plead and

conduct their own cases personally or by counsel ….”).

Jones has alleged no wrong-doing against any defendants. For this reason, to the extent

Jones is attempting to bring a complaint against defendants, the complaint is subject to dismissal.

Because Jones might be able to state plausible claims against the officers present at 319 Wild Horse

Canyon Drive, however, the Court will allow Jones the opportunity to file an amended complaint.

See Part 9, infra.

(3) Plaintiff Smite the Blight Community Church

Although Smite the Blight Community Church is listed as a plaintiff in this action, this entity

makes no allegations against any defendants. It is unclear from the complaint what role, if any,

Smite the Blight Community Church played in any of the allegations against defendants.

Additionally, an entity cannot proceed pro se and in forma pauperis in federal court. As the Supreme

Court has held, artificial entities are not “persons” under 28 U.S.C. § 1915, and therefore cannot

proceed without prepaying fees and cost. See Rowland v. Cal. Men’s Colony, Unit II Men’s

Advisory Council, 506 U.S. 194, 201-11 (1993). For this reason, the Court will dismiss without

prejudice plaintiff Smite the Blight Community Church.

(4) Claims Against Private Entities MK Property Managements, LLC; Bank of New

York Mellon Trust Company, N.A.; Millsap & Singer, LLC; and Reinker &

Hamilton, Fenley, LLC; and Private Individuals Joseph Wolf, Karen Schmitt,

Charles Riske, and Robert Eggmann

Ms. Williams makes only one allegation against the private entities and individuals listed as

defendants in the complaint:

I was illegally arrested and evicted out of my home and my father Johnie F. Jones

was violated by deadly force of Joseph Wolf using the color of the law to have AR

15 pulled on a disabled veteran and my 13-year-old son [J.E.W.] and my fiancé

Maurice Campbell illegally handcuffed and violated by the City of Wildwood

precinct and St. Louis County with the direction of MK Property Managements LLC,

Karen Schmitt, Joseph Wolf, Mark Harder, the Bank of New York Mellon Trust

Company, N.A., et al., Millsap & Singer, LLC, Reinker & Hamilton, Fenley, LLC,

Matthew Hearde.

Compl. at 15.

In order to state a claim for relief under 42 U.S.C. § 1983, “a plaintiff must allege sufficient

facts to show (1) that the defendants acted under color of state law, and (2) that the alleged wrongful

conduct deprived the plaintiff of a constitutionally protected federal right.” Zutz v. Nelson, 601 F.3d

842, 848 (8th Cir. 2010). To that end, a defendant can only be held liable pursuant to § 1983 for

actions taken under color of state law. Carlson v. Roetzel & Andress, 552 F.3d 648, 650 (8th Cir.

2008); see also Magee v. Trustees of Hamline Univ., Minn., 747 F.3d 532, 535 (8th Cir. 2014)

(stating that § 1983 “imposes liability for certain actions taken under color of law that deprive a

person of a right secured by the Constitution and laws of the United States”); Sanders v. Sears,

Roebuck & Co., 984 F.2d 972, 975 (8th Cir. 1993) (stating that § 1983 secures constitutional rights

from government infringement, not infringement by private parties).

When a private party acts under color of state law, it can be held liable under § 1983.

Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004). A private party

may only be held liable “if it is a willful participant in joint activity with the State or its agents.”

Gibson v. Regions Fin. Corp., 557 F.3d 842, 846 (8th Cir. 2009). In order to state a claim against a

private party under § 1983, the plaintiff “must allege, at the very least, that there was a mutual

understanding, or a meeting of the minds, between the private party and the state actor.” Mershon

v. Beasley, 994 F.2d 449, 451 (8th Cir. 1993).

Here, plaintiffs states that the officers ordered Campbell, J.E.W., and Jones out of the

residence “with the direction of MK Property Managements, LLC, Karen Schmitt, Joseph Wolf,

Mike Herder, the Bank of New York Mellon Trust Company, N.A., Millsap & Singer, LLC, Reinker

& Hamilton, Fenley, LLC . . . .” This conclusory allegation is not enough to state a plausible claim

of a § 1983 violation against these private defendants. Plaintiffs do not allege any mutual

understanding or meeting of the minds between these private parties and the officers. Instead, based

on the complaint, it appears the officers were enforcing an order of the St. Louis County Court. This

Court cannot hold private actors liable under § 1983 for actions taken by police officers pursuant to

a court order.

Plaintiffs have stated no facts from which the Court could find the private party defendants

liable for any alleged constitutional violations. For this reason, the Court will dismiss without

prejudice all claims brought against the following defendants: Joseph Wolf, Karen Schmitt, MK

Property Managements, LLC, Bank of New York Mellon Trust Company, N.A., Millsap & Singer,

LLC, Reinker & Hamilton, Fenley, LLC, Charles Riske, and Robert Eggmann.

(5) Judges Matthew Hearne and Bonnie L. Clair

St. Louis County Circuit Court Judge Matthew Hearne presides over plaintiffs’ underlying

unlawful detainer case. Federal Bankruptcy Court Judge Bonnie L. Clair presides over Jones’s

bankruptcy action. 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, Mo., 948 F.3d 921, 925 (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 Cnty., 931 F.3d 753, 760 (8th Cir. 2019).

Plaintiffs’ allegations against Judges Hearne and Clair, although not entirely clear, relate to

their actions taken in judicial proceedings. Plaintiffs have not alleged these judges acted in the

absence of any jurisdiction. Therefore, no exception to judicial immunity is applicable. See Schottel

v. Young, 687 F.3d 370, 373 (8th Cir. 2012). Because defendant Judges Hearne and Clair are

immune from plaintiffs’ action, the Court will dismiss them from this case.

(6) Defendant Mark Harder

Plaintiffs list as a defendant Mark Harder, a St. Louis County Councilman. The only

mention of Harder in the complaint is in the following conclusory sentence: “I was illegally arrested

and evicted out of my home . . . using the color of the law . . . with the direction of . . . M[ark]

Harder.” (Compl. at 15). Plaintiffs have alleged no facts from which the Court could find any

plausible claim for relief against Harder. Plaintiffs do not allege Harder was involved in any

underlying proceeding or that he was present or involved in the events at 319 Wild Horse Canyon

Drive on July 20, 2021. Even pro se complaints must allege facts which, if true, state a claim for

relief as a matter of law. Martin, 623 F.2d at 1286. Federal courts are not required to assume facts

that are not alleged. Stone, 364 F.3d at 914-15. Because plaintiffs have made no factual allegations

against Harder, they have failed to state a claim upon which relief may be granted. The Court will

dismiss without prejudice all claims brought against defendant Harder.

(7) Defendant St. Louis County Police Department

Plaintiffs’ claims against the St. Louis County Police Department must be dismissed. The

St. Louis County Police Department is a department or subdivision of local government and not a

juridical entity suable as such. Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir.

1992) (affirming dismissal of West Memphis Police Department and West Memphis Paramedic

Services because they were “not juridical entities suable as such”); see also Owens v. Scott Cty. Jail,

328 F.3d 1026, 1027 (8th Cir. 2003) (stating that “county jails are not legal entities amenable to

suit”); De La Garza v. Kandiyohi Cty. Jail, 18 F. App’x 436, 437 (8th Cir. 2001) (affirming district

court dismissal of county jail and sheriff’s department as parties because they are not suable

entities). Because the St. Louis County Police Department is not a suable entity, the Court will

dismiss all claims brought against it.

(8) Defendant United States of America

Likewise, plaintiff’s claims against the United States of America must be dismissed.

“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 Servs., 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”). In order to sue the United States, a plaintiff must show

a waiver of sovereign immunity. See V S Ltd. P’ship v. Dep’t of Housing and Urban Dev., 235 F.3d

1109, 1112 (8th Cir. 2000). Such a waiver must be unequivocally expressed and cannot be implied.

See College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999).

Plaintiffs have not shown any waiver of sovereign immunity, and their claims against the

United States of America will be dismissed.

(9) Police Officers Tim Ware, Steve DeGhelder, and Unknown Brown

As to plaintiffs’ allegations against Officers Ware, DeGhelder, and Brown, plaintiffs have

not alleged whether they are suing these officers in their individual capacities, official capacities, or

both. A plaintiff can bring a § 1983 claim against a public official acting in his or her official

capacity, his or her individual capacity, or both. Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007).

If a plaintiff’s complaint is silent about the capacity in which the defendant is being sued, the

complaint is interpreted as including only official capacity claims. Id.; see also Johnson v. Outboard

Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“[I]n order to sue a public official in his or her

individual capacity, a plaintiff must expressly and unambiguously state so in the pleadings,

otherwise, it will be assumed that the defendant is sued only in his or her official capacity”).

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”). To prevail on this

type of claim, plaintiffs must establish the governmental entity’s liability for the alleged conduct.

Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th 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 (8th

Cir. 2018).

Plaintiffs have not established any governmental entity’s liability for any of the alleged

conduct. As a result, the complaint fails to state a claim upon which relief can be granted against

defendant Officers Ware, DeGhelder, and Brown in their official capacities, and these claims are

subject to dismissal. Because it is plausible that plaintiffs might be able to state claims of

constitutional violations against Officers Ware, DeGhelder, and Brown in their individual

capacities, the Court will not dismiss the case entirely at this time. Instead, the Court will give

plaintiffs the opportunity to file an amended complaint to allege their claims against these officers

in their individual capacities.

Plaintiffs shall have twenty-one days from the date of this Memorandum and Order to file

an amended complaint on a Court-provided form. Plaintiffs are warned that the filing of an amended

complaint replaces the original complaint, and claims that are not re-alleged are deemed abandoned.

E.g., In re Wireless Tele. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005). If

plaintiffs fail to file an amended complaint on a Court-provided form within twenty-one days, the

Court will dismiss this action without prejudice.

Accordingly,

IT IS HEREBY ORDERED that plaintiffs Johnie Frank Jones, Rozina Rhonda Jones

Williams, J.E.W., IV, and Maurice Campbell’s motions for leave to proceed in the district court

without prepaying fees and costs are GRANTED. [ECF Nos. 2-5]

IT IS FURTHER ORDERED plaintiffs J.E.W., IV and Smite the Blight Community

Church are DISMISSED without prejudice from this action.

IT IS FURTHER ORDERED that on initial review pursuant to 28 U.S.C. § 1915(e)(2)(B),

plaintiffs’ complaint against defendants Joseph Wolf, Karen Schmitt, MK Property Managements,

LLC, Bank of New York Mellon Trust Company, N.A., St. Louis County Police Department,

Matthew Hearne, Mark Harder, Millsap & Singer, LLC, Reinker & Hamilton, Fenley, LLC, Bonnie

L. Clair, Charles Riske, United States of America, and Robert E. Eggmann are DISMISSED

without prejudice for failure to state a claim upon which relief can be granted.

IT IS FURTHER ORDERED that on initial review pursuant to 28 U.S.C. § 1915(e)(2)(B),

plaintiffs’ complaint against defendants Tim Ware, Steve DeGhelder, and Unknown Brown brought

in their official capacities are DISMISSED without prejudice.

IT IS FURTHER ORDERED that plaintiffs Johnie Frank Jones, Rozina Rhonda Jones

Williams, and Maurice Campbell shall have twenty-one (21) days from the date of this

Memorandum and Order to submit an amended complaint on a Court-provided form.

IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiffs a Civil

Complaint form (No. MOED-0032).

IT IS FURTHER ORDERED that if plaintiffs do not file an amended complaint on a

Court-provided form by December 31, 2021, this case will be dismissed without prejudice without

further notice to plaintiffs.

An Order of Partial Dismissal will accompany this Memorandum and Order.

Dated this 10th day of December, 2021.

ONNIE L. WHITE

UNITED STATES DISTRICT JUDGE

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