Curtis v. State of Missouri

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

DUSTIN PATRICK CURTIS, )

)

Plaintiff, )

)

v. ) No. 4:23-CV-00381 RLW

)

STATE OF MISSOURI, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Self-represented plaintiff Dustin Patrick Curtis brings this action under 42 U.S.C. § 1983

for alleged violations of his civil rights. The matter is now before the Court on review of plaintiff’s

motion for leave to proceed in forma pauperis, or without prepayment of the required filing fees

and costs. [ECF No. 2]. While incarcerated, plaintiff has brought more than three civil actions in

federal court that were dismissed as frivolous, malicious, or for failure to state a claim. As

discussed below, plaintiff is subject to the three strikes rule, 28 U.S.C. § 1915(g). Accordingly, the

Court will deny plaintiff’s motion for leave to proceed in forma pauperis and dismiss plaintiff’s

complaint without prejudice, subject to refiling as a fully paid complaint.

The Complaint

Plaintiff Dustin Patrick Curtis, an inmate at St. Charles County Correctional Center, filed

this action pursuant to 42 U.S.C. § 1983 on March 23, 2023, by placing his complaint in the prison

mailing system at St. Charles County Correctional Center. He names the following defendants in

this action: the State of Missouri; Unknown Officer Smith (St. Peters Police Department); St.

Charles County Correctional Center; St. Peters Police Department; Unknown Arresting Officers

of the St. Peters Police Department (on the scene through transport); Officer Unknown Anderson

(St. Peters Police Department); Sheriff of St. Peters Police Department; Governor Mike Parsons;

Attorney General Eric Schmitt; and John Doe Officer in Charge of Putting Plaintiff in the Suicide

Unit (St. Charles County Correctional Center). Plaintiff sues Officer Smith in her official capacity.

However, he is silent as to the capacities under which he is suing the remaining defendants.

In his complaint, filed on a prisoner civil rights complaint form, plaintiff asserts that he

was arrested by defendant Unknown Officer Smith, from the St. Peters Police Department, on or

about February 26, 2023. He claims that Officer Smith subjected him to excessive force during his

arrest, claiming that she “threw [him] into a wall,” which put him into a coma. Plaintiff additionally

claims that four other unnamed police officers “hit” him, tied him up, and choked him after he was

already down on the ground. He claims that he was carried to a police car by his throat and feet,

but he does not allege which officers carried him and/or choked him. Plaintiff asserts that he ended

up with “black eyes” and bruises on his face and body.1

Plaintiff was taken to the St. Peters Police Department where he claims that he was

“forcefully” made to take off his clothes. He does not name the defendant who ordered him to take

off his clothes. However, he asserts that an Officer Unknown Anderson pat searched him and “put

a finger in [his] butt” before placing him in a holding cell. Plaintiff refers to this as a sexual assault.2

He states that he asked an unnamed individual at the St. Peters Police Station to transport him to

the hospital after the search, but his request was denied. At some point, plaintiff was transported

1In one portion of his complaint plaintiff claims he was in a coma for two weeks. However, it

appears that he was awake during and immediately after his arrest. Moreover, it is unclear from the

complaint what actions allegedly caused the coma and when exactly the alleged coma occurred. For

example, plaintiff appears to remember the occurrences at the St. Peters Police Station, as well as what

happened after his transfer to the St. Charles County Correctional Center.

2In another portion of plaintiff’s complaint, he states that he was “sexually assaulted” and “raped.”

However, he does not provide facts relating to the alleged sexual assault or rape. Thus, the Court is unsure

if plaintiff is referring to the alleged search by Officer Anderson or a different incident.

to the St. Charles County Correctional Center, where he was placed in an observation (suicide)

cell and made to sleep naked daily. Plaintiff does not indicate how long he was in the suicide cell.

A review of Missouri.Case.Net indicates that plaintiff was arrested on February 25, 2023,

after his mother, Cheryl Curtis, contacted police to report that plaintiff was armed with a steak

knife and threatening to stab himself.3 See State v. Curtis, No. 2311-CR00558 (11th Jud. Cir., St.

Charles Cnty., Mo.).

The probable cause statement in Case No. 2311-CR00558 states as follows:

I, Caitlyn Smith DSN 484, with the St. Peters Police Department (a law

enforcement agency), state that the facts contained herein are true to my best

knowledge and belief and that any false statements made are punishable by law.

I have probable cause to believe that:

On or about 02/25/2023 at 82 MADRID CT-SAINT PETERS in Saint Charles

County, Missouri, Dustin Curtis did commit the following offenses:

Assault 3rd Degree – Special Victim: RSMO 565.040

Resisting/Interfering with Arrest for a Felony: RSMO575.150

I responded to Cheryl Curtis’ home after she called 911, stating Dustin Curtis was

armed with a steak knife and threatening to “stab himself.”

I met Cheryl at the door and she was visibly upset and appeared to be crying. I

began to walk up the stairs when Dustin walked around his mother and opened the

storm door to walk outside. After Dustin exited the house he started yelling and

shoved me with two hands in the upper chest. I said to Dustin, “I’m here to help,

what's going on?" Dustin ignored my statement and continued to yell and push me.

I restrained Dustin by pushing him up against the side wall next to the front door.

Dustin continued to yell and stated he was leaving the house. I told Dustin he was

not leaving and that I needed to speak with him. Dustin began to shove me multiple

more times. I then pinned him against the wall and got on my radio asking units to

expedite due to the physical resisting. While speaking on my radio, Dustin opened

the storm door and began to walk back inside. Dustin had managed to slightly open

the door and get one shoulder inside of the residence. Due to the information that

3Plaintiff’s underlying state court case was reviewed on Case.net, Missouri’s online case

management system. 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”).

Dustin was in possession of a knife before my arrival, and was a threat to the

subjects inside, I restrained him from entering back into the house. I grabbed Dustin

by the arm and shoulder and pulled him back outside of the house. After pulling

Dustin outside, I used my body to close the storm door so that Dustin was unable

to open it anymore.

I instructed Dustin to get on the ground and put his hands behind his back repeatedly

throughout the struggle. He was attempting to flee the scene when I grabbed a hold

of both of his arms and twisted my body in order to take Dustin to the ground and

get him into custody. After successfully taking Dustin to the ground, he attempted

to get up off the wooden porch. I positioned myself behind Dustin and wrapped my

arms around him in a bear hug style. I kept a hold of both of Dustin's arms and used

my body weight to pull him back down to the ground. Dustin and I continued to

wrestle on the porch until other units arrived on scene and took him into custody.

Once Dustin was in custody, I could feel pain in both of my knees. An assessment

of myself for injuries revealed a scrape on my right knee and bruises on both my

left and right knees.

. . . .

I have reasonable grounds to believe that the defendant will not appear upon the

summons or is a danger to the crime victim, the community or any other person

because:

Dustin has an extensive arrest history dating back to 2004. Dustin has been arrested

and prosecuted for Domestic Assault 2nd and 3rd Degree, Unlawful Use of a

Weapon, Burglary 2nd Degree, Kidnapping, Possession of a Controlled Substance,

Property Damage lst Degree, Resisting Arrest, Tampering 1st Degree, Stealing,

Driving While Intoxicated, Leaving the Scene of an Accident and Driving While

Revoked. Dustin currently has a warrant for his arrest through St Charles County

for Failure to Appear- Kidnapping 2nd Degree (warrant #23ADFTA564, bond

amount $25,000). Dustin has a history of violence, drug abuse, and mental health

issues.

A criminal complaint was filed against plaintiff on February 26, 2023. See State v. Curtis,

No. 2311-CR00558 (11th Jud. Cir., St. Charles, Mo.). He was charged with unlawful use of a

weapon, assault in the fourth degree and resisting arrest. Id. Plaintiff has been ordered to undergo

a mental health examination during his incarceration and while awaiting trial.

Legal Standard

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 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).

Discussion

A. Three Strikes Dismissal Grounds

Because of plaintiff’s prior filings in this Court, he is subject to 28 U.S.C. § 1915(g), which

limits a prisoner’s ability to obtain in forma pauperis status if he has filed at least three actions that

have been dismissed as frivolous, malicious, or for failure to state a claim.4 Section 1915(g)

provides in relevant part:

In no event shall a prisoner bring a civil action . . . under this section if the prisoner

has, on three or more prior occasions, while incarcerated or detained in any facility,

brought an action . . . in a court of the United States that was dismissed on the

grounds that it is frivolous, malicious, or fails to state a claim upon which relief

may be granted, unless the prisoner is under imminent danger of serious physical

injury.

28 U.S.C. § 1915(g).

Section 1915(g) is commonly known as the “three strikes” rule, and it has withstood

constitutional challenges. See Higgins v. Carpenter, 258 F.3d 797, 799 (8th Cir. 2001). Prisoners

who have three strikes must prepay the entire filing fee for their case to proceed. Lyon v. Krol, 127

F.3d 763, 764 (8th Cir. 1997).

4The Court takes judicial notice that plaintiff is a prisoner who, while incarcerated, has filed at least

three civil actions that were dismissed on the grounds that they were frivolous, malicious, or failed to state

a claim upon which relief may be granted. See Curtis v. Nichols, No. 4:19-CV-2597 SRC (E.D. Mo)

(dismissal as Heck-barred); Curtis v. House, No. 4:19-CV-1810 (E.D. Mo) (dismissal for failure to state a

claim); Curtis v. Nichols, No. 4:19-CV-1216 JAR (E.D. Mo) (dismissal as Heck-barred). See Armentrout

v. Tyra, 175 F.3d 1023 (8th Cir. 1999) (per curiam) (indicating that a dismissal under Heck constitutes a

strike). Therefore, the Court can allow plaintiff to proceed in forma pauperis only if the allegations in his

complaint indicate he is under imminent danger of serious physical injury at the time he filed the pleading.

See 28 U.S.C. § 1915(g).

Plaintiff has accumulated more than three strikes under this provision. As a result, this

Court is unable to permit plaintiff to proceed in forma pauperis in this matter unless the “imminent

danger” exception is applicable. 28 U.S.C. § 1915(g). Pursuant to § 1915(g), an indigent inmate

who has acquired three strikes may still file a lawsuit if he or she is under imminent danger of

serious physical injury. Higgins, 258 F.3d at 800. This exception provides a “safety valve for the

three strikes rule to prevent impending harms.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.

2003). For this exception to apply, an otherwise ineligible prisoner must be in imminent danger at

the time of filing. Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998). Allegations of past

imminent danger are not sufficient to trigger the exception to § 1915(g). Id. A plaintiff must plead

“specific fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing

the likelihood of imminent serious physical injury;” conclusory assertions of ongoing danger are

insufficient. Martin, 319 F.3d at 1050. Furthermore, the imminent danger “exception focuses on

the risk that the conduct complained of threatens continuing or future injury.” Id.

Courts may deny in forma pauperis and find no imminent danger if the claims of imminent

danger are “conclusory or ridiculous.” See Ciarpaglini v. Saini, 352 F.3d 328, 330-331 (9th Cir.

2003) (citing Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003) (contesting one's

conviction and complaining of inadequate protection two years previously is not imminent

danger)); Martin, 319 F.2d at 1050 (working in inclement weather twice is not imminent danger);

White v. Colorado, 157 F.2d 1226, 1231 (10th Cir. 1998) (“vague and conclusory” assertions of

withheld medical treatment when prisoner was seen over 100 times by physician is not imminent

danger).

Plaintiff's complaint comprises approximately one full page of a “Statement of Claim.”

The issues presented in this case relate to plaintiff’s claims that he was subjected to excessive force

during his arrest on February 25, 2023. He additionally alleges that during a strip search he was

sexually assaulted when police officers ordered him to take his clothes off and “put a finger in

[his] butt.” Last, plaintiff objects to being held on suicide watch for several days in St. Charles

County Correctional Center at the beginning of March 2023.5

Plaintiff’s history, circumstances, and allegations do not indicate that he is in imminent

danger of serious physical injury at the time he filed his complaint. Rather, his assertions show

that he is contesting the circumstances of his February 25, 2023 arrest and subsequent

imprisonment in the St. Charles County Correctional Center. Plaintiff thus fails to demonstrate

that the exception to the three-strikes provision in § 1915(g) is applicable to him. Therefore, the

Court will deny plaintiff’s motion to proceed in forma pauperis and will dismiss this action without

prejudice to plaintiff refiling a fully paid complaint.

B. Alternative Dismissal Grounds

In the alternative, Plaintiff’s complaint is subject to dismissal on the merits, for failure to

state a claim upon which relief can be granted.

First, plaintiff’s allegations against the St. Peters Police Department and the St. Charles

County Correctional Center are subject to dismissal because jails and local government detention

centers are not suable entities under 42 U.S.C. § 1983. Owens v. Scott Cnty. Jail, 328 F.3d 1026,

1027 (8th Cir. 2003) (affirming dismissal of § 1983 claim because “county jails are not legal

entities amenable to suit.”); De La Garza v. Kandiyohi Cnty. Jail, Corr. Inst., 18 F. App’x 436,

437 (8th Cir. 2001) (holding that neither county jail nor sheriff’s department is a suable entity

under § 1983); see also Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992)

5Plaintiff filed the instant lawsuit by placing his complaint in the mailing system at the St. Charles

Correctional Center on March 23, 2023. He does not indicate that he is currently under imminent danger at

the St. Charles Correctional Center.

(holding that departments or subdivisions of local government are “not juridical entities suable as

such” under § 1983).

In addition, plaintiff is bringing this action against defendants in their official capacities

only.6 “[A]s a suit against a government official in his official capacity is functionally equivalent

to a suit against the employing governmental entity, a suit against a government official in only

his official capacity should be dismissed as redundant if the employing entity is also named.” King

v. City of Crestwood, Mo., 899 F.3d 643, 650 (8th Cir. 2018). In this case, plaintiff’s suit against

the defendant police officers in their official capacities is the functional equivalent of a suit against

St. Charles County, Missouri.7

A local governing body can be sued directly under 42 U.S.C. § 1983. Monell v. Dep’t of

Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). However, a municipality cannot be

6If 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. Baker v. Chisom, 501 F.3d 920, 923 (8th

Cir. 2007); 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”);

Artis v. Francis Howell N. Band Booster Ass’n, Inc., 161 F.3d 1178, 1182 (8th Cir. 1998) (“If the complaint

does not specifically name the defendant in his individual capacity, it is presumed he is sued only in his

official capacity”). Although plaintiff indicates he is suing Officer Smith in her official capacity, he is silent

as to the capacities in which he is suing the other defendants. Therefore, the Court finds that plaintiff is

suing the defendants in their official capacities only.

7As noted above, plaintiff also sues the State of Missouri, Governor Mike Parson and (former)

Attorney General Eric Schmitt. These individuals are employed by the State of Missouri. However, 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). “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 a nonconsenting

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, 2018 WL 2070564, at *1

(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”); 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”). To that

end, the State of Missouri is protected from suit by the Eleventh Amendment.

held liable merely because it employs a tortfeasor. A.H. v. City of St. Louis, Mo., 891 F.3d 721,

728 (8th Cir. 2018) (“In an action under § 1983, a municipality … cannot be liable on a respondeat

superior theory”). Rather, to prevail on this type of claim, the plaintiff 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). See also Marsh v.

Phelps Cnty., 902 F.3d 745, 751 (8th Cir. 2018) (recognizing “claims challenging an

unconstitutional policy or custom, or those based on a theory of inadequate training, which is an

extension of the same”). Thus, there are three ways in which plaintiff can prove the liability of St.

Charles County, Missouri.

First, plaintiff can show the existence of an unconstitutional policy. “Policy” refers to

“official policy, a deliberate choice of a guiding principle or procedure made by the municipal

official who has final authority regarding such matters.” Corwin v. City of Independence, Mo., 829

F.3d 695, 700 (8th Cir. 2016). See also Russell v. Hennepin Cnty., 420 F.3d 841, 847 (8th Cir.

2005) (“A policy is a deliberate choice to follow a course of action made from among various

alternatives by the official or officials responsible … for establishing final policy with respect to

the subject matter in question”). For a policy that is unconstitutional on its face, a plaintiff needs

no evidence other than a statement of the policy and its exercise. Szabla v. City of Brooklyn, Minn.,

486 F.3d 385, 389 (8th Cir. 2007). However, when “a policy is constitutional on its face, but it is

asserted that a municipality should have done more to prevent constitutional violations by its

employees, a plaintiff must establish the existence of a ‘policy’ by demonstrating that the

inadequacies were a product of deliberate or conscious choice by the policymakers.” Id. at 390.

“A policy may be either a policy statement, ordinance, regulation, or decision officially adopted

and promulgated by the municipality’s governing body.” Angarita v. St. Louis Cnty., 981 F.2d

1537, 1546 (8th Cir. 1992).

Second, plaintiff can establish a claim of liability based on an unconstitutional “custom.”

To do so, plaintiff must demonstrate:

1) The existence of a continuing, widespread, persistent pattern of

unconstitutional misconduct by the governmental entity’s

employees;

2) Deliberate indifference to or tacit authorization of such conduct by

the governmental entity’s policymaking officials after notice to the

officials of that misconduct; and

3) That plaintiff was injured by acts pursuant to the governmental

entity’s custom, i.e., that the custom was a moving force behind the

constitutional violation.

Johnson v. Douglas Cnty. Med. Dep’t, 725 F.3d 825, 828 (8th Cir. 2013).

Third, plaintiff can assert a municipal liability claim by establishing a deliberately

indifferent failure to train or supervise. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388

(1989) (explaining that inadequate training may serve as the basis for 42 U.S.C. § 1983 liability

only when “the failure to train amounts to deliberate indifference”). To show deliberate

indifference, a plaintiff must prove that the municipality “had notice that its procedures were

inadequate and likely to result in a violation of constitutional rights.” See Jennings v. Wentzville

R-IV Sch. Dist., 397 F.3d 1118, 1122 (8th Cir. 2005). Ordinarily, this is done by a plaintiff alleging

a “pattern of similar constitutional violations by untrained employees.” See S.M. v. Lincoln Cnty.,

874 F.3d 581, 585 (8th Cir. 2017).

In this case, plaintiff has failed to allege any facts alleging an unconstitutional policy,

custom, or failure to train or supervise with respect to St. Charles County, Missouri. At a minimum,

the complaint must allege facts supporting the proposition that an unconstitutional policy or

custom exists. Doe ex rel. Doe v. Sch. Dist. of City of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003).

Plaintiff has failed to do so in this instance. As such, his claims against the defendant police officers

in their official capacities are subject to dismissal.

Accordingly,

IT IS HEREBY ORDERED that plaintiff's application to proceed in the district court

without prepaying fees and costs [ECF No. 2] is DENIED.

IT IS FURTHER ORDERED that this action is subject to dismissal pursuant to 28 U.S.C.

§ 1915(g).

IT IS FURTHER ORDERED that, in the alternative, this action is subject to dismissal

pursuant to 28 U.S.C. § 1915(e)(2)(B), for failure to state a claim upon which relief can be granted.

IT IS HEREBY CERTIFIED that an appeal from this action would not be taken in good

faith.

An Order of Dismissal will accompany this Memorandum and Order.

UNITED STATES DISTRICT JUDGE

Dated this 12th day of April, 2023.

-12-