Cush-El v. State of Missouri INC.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

PEACE ELLUVASUN ALLAH CUSH-EL, )

)

Plaintiff, )

)

v. ) No. 4:22-cv-00656-RWS

)

STATE OF MISSOURI, INC., et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Peace Elluvasun Allah Cush-

El for leave to commence this civil action without prepayment of the required filing fee. (Docket

No. 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 $2.50. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons

discussed below, the Court will dismiss plaintiff’s complaint without prejudice.

28 U.S.C. § 1915(b)(1)

Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is

required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her

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

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

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

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

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

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 has submitted a

copy of his inmate account statement. (Docket No. 2 at 3). The account statement shows an average

monthly deposit of $12.50. The Court will therefore assess an initial partial filing fee of $2.50,

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 28 U.S.C. § 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 St. Louis County

Justice Center (SLCJC) in Clayton, Missouri. He brings this civil action pursuant to 42 U.S.C. §

1983, naming the State of Missouri, Governor Mike Parson, Missouri Attorney General Eric

Schmitt, former United States Attorney General William Barr, Prosecutor Wesley Bell, New York

Stock Exchange (NYSE) CEO Stacy Cunningham, and UMB Bank Financial Corporation CEO

John Mariner Kemper as defendants. (Docket No. 1-1 at 1). All the defendants are sued in their

individual capacities only. (Docket No. 1 at 2-3; Docket No. 1-1 at 3). The complaint is hand-

written on a Court-provided form. With additional sheets and exhibits, it is ninety-six pages long.1

The majority of the complaint regards plaintiff’s contention that defendants – who he calls

1 The Court notes that it has reviewed the entirety of the complaint, including all attachments, and will treat such

exhibits as part of the pleadings. See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a

pleading is part of the pleading for all purposes”). See also Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011)

(stating that “while ordinarily, only the facts alleged in the complaint are considered in determining whether it states

a claim, materials attached to the complaint as exhibits may be considered in construing the sufficiency of the

complaint”); and Pratt v. Corrections Corp. of America, 124 Fed. Appx. 465, 466 (8th Cir. 2005) (explaining that “the

district court was required to consider the allegations not only in [plaintiff’s] pro se complaint, but also in his motion

to amend, his response to defendants’ motion to dismiss, and the attachments to those pleadings”).

“creditors” – violated an “automatic stay” in his Chapter 7 bankruptcy proceedings by arresting

him in Rowan County, North Carolina, and extraditing him to the SLCJC. (Docket No. 1 at 4).

In the “Facts” section of his complaint, plaintiff asserts that he sent to defendants a “UCC

Aboriginal Trust Security Agreement,” four Freedom of Information Act (FOIA) requests, a

“Notice of Bankruptcy,” an “Administrative Default Judgment,” a “Federal Trade Commission

Affidavit,” and an “Order of Discharge” from his Chapter 7 bankruptcy. (Docket No. 1-1 at 3). He

explains that the purpose of these requests was for defendants “to provide information from their

General Obligation Bonds and Comprehensive Annual Financial Report via account #19SL-

CR04392.” (Docket No. 1-1 at 5). The Court notes that the “account” referenced by plaintiff is a

pending criminal case in which he is charged with three counts of statutory sodomy or attempted

statutory sodomy, and one count of first-degree statutory rape or attempted statutory rape. State of

Missouri v. Cush-El, No. 19SL-CR04392-01 (21st Jud. Cir., St. Louis County).2

According to plaintiff, he made this demand “to satisfy the requester that this state inc. is

operating within the bounds of the law and is not operating as a Corporate Entity that has dissolved

its sovereignty.” To that end, he wants defendants “to provide information from their SEC files or

from the files of their parent company in reference” to his Missouri state criminal case. (Docket

No. 1-1 at 6). In other words, defendants are required to show “that they have [a] legitimate claim

and interest in respect to the contract-note-security-bond in accordance with all applicable law,”

including the National Bank Act, the Consumer Credit Protection Act, the Fair Debt Collection

Practices Act, the Fair Credit Reporting Act, and the Truth in Lending Act.

2 The Court reviewed plaintiff’s criminal case on Case.net, Missouri’s online case management system, and 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”).

Plaintiff insists that defendants must “provide [him] a copy of the original contract” – by

which he means his criminal case, State of Missouri v. Cush-El, No. 19SL-CR04392-01 – and

“certify that they are willing to have it inspected for authenticity.” (Docket No. 1-1 at 7). They

must also “certify their affirmation that they followed all applicable federal, state and contract

law,” in order to “satisfy [plaintiff] that this financial entity is operating within the bounds of the

law…and that they have a legitimate claim as a creditor and holder in due course.”

To support his propositions, plaintiff refers to the Uniform Commercial Code (U.C.C.).

(Docket No. 1-1 at 8). In particular, he relies on U.C.C. § 3-305, regarding defenses and claims in

recoupment, which he quotes at length. (Docket No. 1-1 at 8-9). Plaintiff argues that defendants

are bound by the Fourteenth Amendment to respond to his information requests, and have failed.

(Docket No. 1-1 at 10). Because they have failed to respond, he asserts that defendants are in

“default in their lawful duty of record to legally verify the alleged claim as required by law and as

stated specifically in their oaths of office which obligate them to follow said laws.” (Docket No.

1-1 at 11). As such, plaintiff states that he is “officially executing [an] administrative default to be

reflected for the record.”

In a section of the complaint titled “Cause of Action,” plaintiff lists defendants’ alleged

failures with more particularity. (Docket No. 1-1 at 12). First, he asserts that defendants “failed to

produce [his] original signature in respect to the alleged claim/contract[,] and failed to state for the

record who the alleged original claimant was based on the proceeding laws.” Second, plaintiff

contends that defendants “failed to provide an affidavit certifying that as [fiduciaries] for the

institution they did not breach any federal, state, contractual commercial or official oath in carrying

out the alleged contract/claim.” Third, he insists that defendants “failed to certify that they did not

unlawfully” use his signature without his consent, and that defendants have “failed to substantiate

for the record that they did not” use his “identity in a fraudulent or illegal manner or [convert his]

true identity into a fictitious identity in collusion with a third party.” Finally, plaintiff accuses

defendants of failing “to provide documents pertaining to any stock, securities, bond[s] etc.

associated with account #19SL-CR03492 et al. on the NYSE…or any other State Stock Exchange

or County/Municipal Stock Exchange.”

Plaintiff closes the “Cause of Action” section of his complaint by alleging that defendants

“have participated in fraud along with illegal transactions in respect to their claim, have violated

their oaths of office and thus violated federal law and subsequent state law and commercial statutes

that apply.” (Docket No. 1-1 at 13).

Aside from the framing of his criminal case as a contractual violation, plaintiff also

complains about the food he is receiving in the SLCJC. (Docket No. 1-1 at 16). He states that he

has asked for “healthy phototrophic foods,” but that he has been “fed…only heterotrophic foods

causing an adverse effect on [his] health.”

By way of further explanation, plaintiff asserts that his religion is “Peace of Mind [and]

Kindness of Body,” and that based on this religion, he has certain requirements that must be met.

(Docket No. 1-1 at 34). One of these requirements is the ability to eat “phototrophic” foods.

According to plaintiff, phototrophic organisms “synthesize solar radiation as the most viable form

of biological energy processing,” stimulating and activating “all other processes of energy

production, physiological processes, and construction of anatomy.” (Docket No. 1-1 at 38).

“Heterotrophic organisms,” on the other hand, “are anti-solar and have their genesis in post

cataclysmic earth events.” These heterotrophic foods – including peanuts, soybeans, string beans,

kidney beans, eggs, white rice, broccoli, cauliflower, and potatoes – “are nitrogen fixators” and

are toxic. (Docket No. 1-1 at 39). Plaintiff believes that being served heterotrophic foods are the

“biological cause of disease,” and that he is suffering symptoms including bloody stool, extreme

fatigue, dizziness, headaches, vomiting, abdominal pains, and chest pains due to his diet. (Docket

No. 1-1 at 16, 41, 45).

Based on these facts, plaintiff seeks “[a] preliminary and permanent injunction ordering

creditor/defendant agent Wesley Bell to [officially] release the judicial lien against plaintiff and

his property.” (Docket No. 1-1 at 14). In other words, he appears to be asking for his state criminal

case to be dismissed. Plaintiff also requests $80,000 in compensatory damages from each

defendant, and $80,000 in punitive damages from each defendant.

Discussion

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

1983, alleging that defendants violated his constitutional rights by having him arrested in North

Carolina, extradited to Missouri, and detained in the SLCJC. Because he is proceeding in forma

pauperis, the Court has 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.

A. Claim Against the State of Missouri

Plaintiff has named the State of Missouri – which he refers to as “State of Missouri, Inc.”

– as a defendant in this action. This claim is barred by 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”).

This immunity 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.

The first exception does not apply because the Supreme Court has determined that 42

U.S.C. § 1983 – under which this case arises – 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”). The second exception is inapplicable

because Missouri has not waived its immunity in this type of case. See RSMo § 537.600

(explaining that sovereign immunity is “in effect,” and providing exceptions relating to the

“negligent acts or omissions by public employees arising out of the operation of motor

vehicles…within the course of their employment,” and regarding “[i]njuries caused by the

condition of a public entity’s property”).

In this case, plaintiff is attempting to sue the State of Missouri. Such a claim is barred,

whether he is seeking monetary damages or injunctive relief. Furthermore, neither exception to

sovereign immunity is present here. Therefore, the claim against the State of Missouri must be

dismissed.

B. Claims Against Governor Parson, Attorney General Schmitt, and Attorney General

Barr

Plaintiff has named Governor Parson, Missouri Attorney General Schmitt, and former

United States Attorney General Barr as defendants. They are sued in their individual capacities

only. These claims must be dismissed for failure to state a claim and for frivolousness.

i. Failure to State an Individual Capacity Claim

Individual liability in a 42 U.S.C. § 1983 case is personal. See 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 not established that defendants Parson, Schmitt, and Barr were

personally responsible for violating his constitutional rights. Indeed, he does not allege that these

defendants took any actions whatsoever. For example, plaintiff has not alleged that they

investigated his criminal case, arrested him, arranged for his extradition, or had any role in his

ongoing proceeding. Rather, the only time these defendants are mentioned is in reference to

plaintiff’s assertions that he sent them various FOIA requests and affidavits. Even assuming that

defendants received – and were able to interpret – these legally-dubious documents, there is no

support for the proposition that they were responsible for answering them, and that a failure to

answer amounted to a constitutional violation. Therefore, plaintiff has failed to state individual

capacity claims against defendants Parson, Schmitt, and Barr.

ii. Frivolousness

Pursuant to 28 U.S.C. § 1915, a court may dismiss a complaint as frivolous if it lacks an

arguable basis in law or fact. Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992). When dealing

with factual frivolity, courts are given “the unusual power to pierce the veil of the complaint’s

factual allegations and dismiss those claims whose factual contentions are clearly baseless.”

Neitzke v. Williams, 490 U.S. 319, 327 (1989). Such a dismissal encompasses allegations that are

fanciful, fantastic, and delusional. Denton v. Hernandez, 504 U.S. 25, 32 (1992). “[A] finding of

factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the

wholly incredible, whether or not there are judicially noticeable facts available to contradict them.”

Id.

In this case, though the logic can be hard to discern, plaintiff appears to be attacking his

state court criminal proceeding by reframing it as a commercial transaction governed by the U.C.C.

and a variety of other statutes. As best the Court can tell, plaintiff recorded a U.C.C. financing

statement on himself as a “Corp[orate] Citizen.” (Docket No. 1-4 at 1). He later filed a Chapter 7

bankruptcy action in the Middle District of North Carolina, for which an order of discharge was

granted. (Docket No. 1-6 at 1, 3). Plaintiff alleges that defendants “violated” [his] bankruptcy

[Chapter 7] automatic stay” by arresting him. Furthermore, because he believes his criminal case

is actually an “account” governed by the U.C.C., he insists that defendants are required to respond

to his demands, including requests for an affidavit asserting “they did not breach any federal, state,

contractual commercial or official oath in carrying out the alleged contract/claim.” Defendants’

failure to comply purportedly puts them into default and demonstrates that they have committed

fraud.

Plaintiff’s arguments are similar to those made by “sovereign citizens,” who generally

contend that the United States “is made up of two types of people: those who are sovereign citizens

by virtue of Article IV of the Constitution, and those who are corporate or Fourteenth Amendment

citizens by virtue of the ratification of the Fourteenth Amendment.” See United States v. Hobbs,

2012 WL 2458425, at *11 (E.D. Mo. 2012).

According to the United States Court of Appeals for the Eighth Circuit, “[s]overeign

citizens are a loosely-affiliated group who believe government in the United States operates

illegitimately and outside the bounds of its jurisdiction.” Waters v. Madson, 911 F.3d 725, 732 n.4

(8th Cir. 2019). See also United States v. Barraza, 982 F.3d 1106, 1113 n.3 (8th Cir. 2020). Some

sovereign citizens believe that the United States Government “operates solely on a credit system

using American citizens as collateral.” El v. AmeriCredit Fin. Servs., Inc., 710 F.3d 748, 750 (7th

Cir. 2013). Others believe they are not subject to the jurisdiction of the courts and often deny they

are the defendants in a particular action. See United States v. Sterling, 738 F.3d 228, 233 n.1 (11th

Cir. 2013).

Such jurisdictional arguments have been deemed frivolous. See United States v. Hart, 701

F.2d 749, 750 (8th Cir. 1983) (stating that appellant’s assertion that federal courts “have no civil

jurisdiction over a sovereign citizen” was frivolous); United States v. Simonson, 563 Fed. Appx.

514 (8th Cir. 2014) (stating that appellants’ argument “that they are special, sovereign citizens”

was frivolous); and United States v. Hardin, 489 Fed. Appx. 984, 985 (8th Cir. 2012) (rejecting as

meritless appellant’s challenges to the district court’s jurisdiction based on his status as a sovereign

citizen). In short, the arguments of sovereign citizens “are completely without merit, patently

frivolous, and will be rejected without expending any more of this Court’s resources on their

discussions.” See United States v. Jagim, 978 F.2d 1032, 1036 (8th Cir. 1992). To put it in other

words: the U.C.C. “has no bearing on criminal subject matter jurisdiction.” Flanagan v. United

States, 2014 WL 1315230, at *6 (E.D. Mo. 2014), quoting United States v. Mitchell, 405 F.Supp.2d

602, 604 (D. Md. 2005).

As noted above, a complaint is frivolous if it lacks an arguable basis in law or fact.

Plaintiff’s sovereign citizen-type allegations have been widely rejected elsewhere as meritless and

frivolous. Therefore, for this reason as well, his claims against defendants Parson, Schmitt, and

Barr must be dismissed.

C. Claim Against Prosecutor Bell

Plaintiff has named Prosecutor Bell as a defendant, suing Bell in his individual capacity

only. This claim must be dismissed because Bell is immune from suit. In addition, the claim fails

to state a claim and is frivolous.

i. Prosecutorial Immunity

Prosecutors are immune from 42 U.S.C. § 1983 liability so long as the actions complained

of appear to be within the scope of prosecutorial duties. Price v. Moody, 677 F.2d 676, 677 (8th

Cir. 1982). See also Keating v. Martin, 638 F.2d 1121, 1122 (8th Cir. 1980). The immunity enjoyed

by prosecutors from § 1983 actions can be either absolute or qualified. Brodnicki v. City of Omaha,

75 F.3d 1261, 1266 (8th Cir. 1996). A prosecutor is entitled to absolute immunity if he or she is

acting as an advocate for the state in a criminal prosecution. Id. On the other hand, a prosecutor is

entitled to only qualified immunity when he or she pursues actions in an “investigatory” or

“administrative” capacity. Id.

“Absolute immunity protects prosecutors against claims arising from their initiation of a

prosecution and presenting a criminal case insofar as that conduct is intimately associated with the

judicial phase of the criminal process.” Sample v. City of Woodbury, 836 F.3d 913, 916 (8th Cir.

2016). For instance, “[t]he acts of preparing, signing, and filing a criminal complaint constitute

prosecutorial functions, as they are advocacy on behalf of the government.” Schenk v. Chavis, 461

F.3d 1043, 1046 (8th Cir. 2006).

Prosecutorial immunity depends on the functional nature of the prosecutor’s activities;

therefore, immunity is not defeated by “allegations of improper motive in the performance of

prosecutorial functions.” Sample, 836 F.3d at 916. Absolute immunity still applies even when there

are allegations of malice, vindictiveness, or self-interest. Reasonover v. City of St. Louis, Mo., 447

F.3d 569, 580 (8th Cir. 2006). Absolute immunity also “covers actions taken to initiate a

prosecution, even if those actions are patently improper.” Saterdalen v. Spencer, 725 F.3d 838,

842 (8th Cir. 2013). See also Woodworth v. Hulshof, 891 F.3d 1083, 1089 (8th Cir. 2018)

(explaining “that a prosecutor is immune from suit even if he knowingly presented false,

misleading, or perjured testimony or withheld or suppressed exculpatory evidence”).

In this case, defendant Bell is alleged to be the “prosecuting attorney” of plaintiff’s criminal

case. To the extent that plaintiff seeks to hold Prosecutor Bell liable for initiating his prosecution,

or for participating “with the judicial phase of the criminal process,” Bell has absolute immunity.

As there is no indication that Prosecutor Bell did anything other than act as an advocate on behalf

of the state, plaintiff’s claim must be dismissed.

ii. Failure to State a Claim

Similar to defendants Parson, Schmitt, and Barr, plaintiff has failed to state an individual

capacity claim against Prosecutor Bell. Such liability under 42 U.S.C. § 1983 “requires a causal

link to, and direct responsibility for, the deprivation of rights.” Mayorga, 442 F.3d at 1132.

The necessary causal link is missing here. More to the point, plaintiff has not accused

Prosecutor Bell of taking any specific actions whatsoever. While it can be assumed that, as a

prosecutor, Bell played some role in plaintiff’s criminal case, there is no indication as to what that

role consisted, much less that it involved a constitutional violation. The only time Prosecutor Bell

is mentioned, it is in reference to FOIA requests and demands sent by plaintiff. There is no support

for the proposition that Bell had a constitutional responsibility to respond to these documents,

which are based on the unsound legal premise that his criminal case is governed by commercial

law. Therefore, plaintiff has failed to state a claim against Prosecutor Bell, and the individual

capacity claim against him must be dismissed.

iii. Frivolousness

Plaintiff’s claim against Prosecutor Bell is also frivolous, as it lacks an arguable basis in

law or fact. See Martinez, 977 F.2d at 423. As discussed at length above, he presents a sovereign

citizen-type claim in which he suggests that his criminal proceedings are actually commercial and

contractual in nature. Because Prosecutor Bell – and the other defendants – failed to adhere to the

U.C.C. and other commercial regulations, he believes that Bell must cease plaintiff’s criminal

prosecution. This proposition is without merit and legally frivolous. See Jagim, 978 F.2d at 1036.

Therefore, for this reason as well, the individual capacity claim against Prosecutor Bell must be

dismissed.

D. Claims Against Defendants Cunningham and Kemper

Plaintiff has sued defendants Cunningham and Kemper in their individual capacities. Both

are alleged to be CEOs of private companies.

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 defendant(s) 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). With regard to the first element, 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); and Montano v. Hedgepeth, 120 F.3d 844, 848 (8th Cir. 1997) (stating that pursuant to §

1983, “the challenged conduct must have been committed by one who acts under color of law”).

When a private party acts under color of state law, it can be held liable under 42 U.S.C. §

1983. Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004). However,

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).

In this case, neither Cunningham or Kemper are alleged to be state actors or acting under

the authority of state law. Rather, both are private citizens who work for private companies. There

is nothing in the 96-page complaint to indicate that they engaged in a joint activity with the State

of Missouri, or reached a mutual understanding or meeting of the minds. Indeed, it is difficult to

imagine what role the CEO of the NYSE and the CEO of UMB Bank Financial would have in

plaintiff’s state criminal case, which does not pertain to financial matters. Because Cunningham

and Kemper were not acting under color of law, plaintiff’s 42 U.S.C. § 1983 claims against them

must be dismissed.

The Court notes that even if Cunningham and Kemper were presumed to have acted under

color of law, the claims against them would still be subject to dismissal. As set forth above, plaintiff

has failed to state a claim, as he has not demonstrated that defendants were personally responsible

for violating his constitutional rights. Moreover, his underlying legal theory – in which he asserts

that his criminal case is governed by the U.C.C. – is legally frivolous. Therefore, for these reasons

as well, plaintiff’s individual capacity claims against Cunningham and Kemper must be dismissed.

E. Inadequate Nutrition Claims

Plaintiff has stated that he is a pretrial detainee. Accordingly, his constitutional claims fall

within the ambit of the Fourteenth Amendment. See Morris v. Zefferi, 601 F.3d 805, 809 (8th Cir.

2010). Though the Eighth Amendment is not applicable, the Fourteenth Amendment’s Due

Process clause “imposes analogous duties on jailers to care for detainees.” Christian v. Wagner,

623 F.3d 608, 613 (8th Cir. 2010).

Regarding nutrition, the Eighth Amendment provides that prisoners have a right to

nutritionally adequate food. Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992). See also Burgin

v. Nix, 899 F.2d 733, 734 (8th Cir. 1990) (“One constitutional protection retained by the prisoner

is the right to an adequate diet”). While control of the diet is within the discretion of prison

officials, the diet must be adequate. Divers v. Dep’t of Corrs., 921 F.2d 191, 194 (8th Cir. 1990).

A plaintiff can demonstrate that his right to an adequate diet was violated by evidence “that the

food he was served was nutritionally inadequate or prepared in a manner presenting an immediate

danger to his health, or that his health suffered as a result of the food.” Ingrassia v. Schafer, 825

F.3d 891, 897 (8th Cir. 2016). See also Obama v. Burl, 477 Fed. Appx. 409, 412 (8th Cir. 2012)

(stating that plaintiff’s allegations regarding constant hunger, small food portions, and weight loss

were sufficient for purposes of preservice review); and Davis v. State of Missouri, 389 Fed. Appx.

579, 579 (8th Cir. 2010) (stating that allegations that plaintiff lost nineteen pounds during eight-

month stay in jail due to insufficient food, and that he was always sick and lacking energy, were

sufficient to survive preservice dismissal).

In this case, plaintiff does not provide any facts demonstrating that the food he is receiving

is nutritionally inadequate or served in portions that are too small. Instead, he complains about the

type of food he is receiving, and expresses a preference for different menu items. In particular, he

believes that certain foods “negatively impacts the hypothalamus[,] a spiritual gland that exists

within the temple of [his] body.” (Docket No. 1-9 at 3).

Plaintiff does list a series of symptoms he believes are connected to his diet, including

bloody stool, extreme fatigue, dizziness, headaches, vomiting, abdominal pains, and chest pains

(Docket No. 1-1 at 16). However, he acknowledges that these symptoms “are related to [an]

autoimmune disorder,” and presents no facts connecting this disorder with his diet in the SLCJC.

There are also no allegations of constant hunger, small food portions, or weight loss. Furthermore,

plaintiff has attached an exhibit from the SLCJC in which the SLCJC affirms that the meals he is

being served meet nutritional guidelines. (Docket No. 1-9 at 8). Thus, plaintiff has not stated a

claim of inadequate nutrition.

More fundamentally, plaintiff has entirely failed to demonstrate that any of the defendants

are responsible for his diet. Among the five individual defendants are the Governor of Missouri,

the Attorney General of Missouri, the former Attorney General of the United States, the CEO of

the NYSE, and the CEO of UMB Bank Financial. None of these defendants work in the SLCJC,

and none are alleged to be responsible for plaintiff’s diet at the SLCJC. All defendants are sued in

their individual capacities only, requiring a nexus between their actions and the violation of a

constitutional right. There is not a single factual allegation, however, establishing a causal

connection between one of these defendants and plaintiff’s jail diet. Therefore, plaintiff’s claim

regarding inadequate nutrition must be dismissed.

F. Motion for Appointment of Counsel

Plaintiff has filed a motion for appointment of counsel. (Docket No. 3). 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

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $2.50

within twenty-one (21) days of the date of this order. Plaintiff is instructed to make his remittance

payable to “Clerk, United States District Court,” and to include upon it: (1) his name; (2) his prison

registration number; (3) the case number; and (4) the statement that the remittance is for an original

proceeding.

IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel (Docket

No. 3) 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 order of dismissal would not be

taken in good faith.

Dated this 17th day of August, 2022.

Cia W. SIPPED □

UNITED STATES DISTRICT JUDGE

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