Jones v. Missouri Dept. of Probation and Parole

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

JASON M. JONES, )

)

Plaintiff, )

)

v. ) No. 1:23-cv-166-RWS

)

MISSOURI DEPT. OF PROBATION AND )

PAROLE, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on the motion of plaintiff Jason M. Jones, a pretrial detainee

at Pemiscot County Justice Center, for leave to commence this civil action without prepayment of

the required filing fee. ECF No. 2. For the reasons explained below, the Court will grant plaintiff’s

motion to proceed in forma pauperis and assess an initial partial filing fee of $1.00. Additionally,

for the reasons explained below, the Court will dismiss this action for failure to state a claim and/or

legal frivolity pursuant to 28 U.S.C. § 1915(e)(2).

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 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 his 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.

Plaintiff did not submit a prison account statement with his motion for leave to commence

this civil action without payment of the required filing fee. On October 4, 2023, the Court ordered

him to submit such a statement. ECF No. 4. Plaintiff responded notifying the Court that the

institution refuses to provide him with an account statement. ECF No. 6. Plaintiff will, therefore,

be required to pay an initial partial filing fee of $1.00, an amount that is reasonable based upon the

information before the Court. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when

a prisoner is unable to provide the Court with a certified copy of his prison account statement, the

Court should assess an amount “that is reasonable, based on whatever information the court has

about the prisoner’s finances.”). If plaintiff is unable to pay the initial partial filing fee, he must

submit a copy of his prison account statement in support of his claim.

The Complaint

Self-represented plaintiff filed the instant action on the Court’s Prisoner Civil Rights

Complaint form pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff names three defendants: (1)

Missouri Department of Probation and Parole (“MDPP”); (2) Anne Precythe, the Director of

Missouri Adult Institutions; and (3) Libby Banks, a Field Officer for MDPP. Plaintiff brings this

action against defendant Precythe in her official capacity and defendant Banks in her individual

capacity.

Plaintiff states he was arrested on December 26, 2021, and on December 29, 2021 he was

interviewed by defendant Banks “in regards to a parole violation.” Id. at 3. He claims she told him

“there was enough evidence for her to issue a warrant since [he] was in custody with charges

pending and to waive [his] preliminary hearing.” Id. She later informed him that his parole had

been revoked, although he had not received a notice of revocation from the Probation and Parole

Board or a hearing. Id. at 4. Plaintiff complains he is being denied the options other pretrial

2

For relief, plaintiff seeks “an injunction for the officer to lift the parole hold to allow [him]

to make bond that the courts have set” or for the Court to direct the MDPP to schedule a parole

revocation hearing. Id. at 5. He does not request monetary damages.

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 may be granted. 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 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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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 self-represented complaints must

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

3

Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules in order to excuse

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

(1993).

Discussion

The Court has carefully reviewed plaintiff’s complaint and has determined it must be

dismissed for failure to state a claim and/or legal frivolity.

A. Claim against defendant Missouri Department of Probation and Parole

First, plaintiff’s claims against the Missouri Department of Probation and Parole are 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”); and Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 618-19 (8th Cir.

1995) (“Generally, in the absence of consent a suit in which the State or one of its agencies or

departments is named as the defendant is proscribed by the Eleventh Amendment”). The Eleventh

Amendment’s immunity bars suit against a state or its agencies for any kind of relief, not merely

monetary damages. See 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

4

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 is inapplicable because 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 does not apply because the State of Missouri has

not waived its immunity in this type of case. See Mo. Rev. Stat. § 537.600.

In this case, plaintiff has named the Missouri Department of Probation and Parole as a

defendant. This Department is an agency of the State of Missouri, meaning that it is protected from

suit by the Eleventh Amendment’s grant of sovereign immunity. This immunity bars suit for any

type of relief, be it monetary or injunctive. Furthermore, no exceptions to sovereign immunity are

applicable. As such, plaintiff’s claims against the MDPP are legally frivolous and fail to state a

claim upon which relief may be granted.

B. Claim against defendant Anne Precythe in her Official Capacity

Plaintiff sues defendant Precythe in 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

5

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”); Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016)

(stating that a “plaintiff who sues public employees in their official, rather than individual,

capacities sues only the public employer”); and Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th

Cir. 2006) (stating that a “suit against a public official in his official capacity is actually a suit

against the entity for which the official is an agent”).

In this case, defendant Precythe is alleged to be the “Director of Missouri Adult

Institutions” or the Director of the Missouri Department of Corrections, meaning she is an

employee of the State of Missouri. As such, the official capacity claim against her is actually a

claim against the state itself, her employer.

Plaintiff seeks injunctive relief; however, he has not demonstrated the liability of the State

of Missouri.1 Such liability may attach if a constitutional violation resulted from (1) an official

policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or supervise. See

Mick v. Raines, 883 F.3d 1075, 1079 (8th Cir. 2018). See also Marsh v. Phelps Cty., 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”). 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). In this

case, plaintiff has not presented any facts supporting the proposition that the State of Missouri

harmed him due to an unconstitutional policy, custom, or failure to train.

1 To the extent plaintiff is seeking money damages, his official capacity claim is barred by the doctrine of sovereign

immunity as previously discussed herein.

6

or decision officially adopted and promulgated by the [governmental entity’s] governing body” as

being at issue in this case. See Angarita v. St. Louis Cnty., 981 F.2d 1537, 1546 (8th Cir. 1992).

He has not alleged any facts showing that the State of Missouri harmed him due to “a deliberate

choice of a guiding principle or procedure made by the [governmental] official who has final

authority regarding such matters.” See Corwin v. City of Independence, Mo., 829 F.3d 695, 700

(8th Cir. 2016).

Second, as to custom, plaintiff has not demonstrated the “existence of a continuing,

widespread, persistent pattern of unconstitutional misconduct by” State of Missouri employees,

much less that policymaking officials were deliberately indifferent to or tacitly authorized such

indifference. See Johnson, 725 F.3d at 828. Indeed, plaintiff’s complaint involves his own personal

experience, not a series of violations sufficient to constitute a pattern.

Third, and similarly, plaintiff has not shown that the State of Missouri was deliberately

indifferent in failing to train or supervise its employees. To show deliberate indifference, a plaintiff

must prove that the state “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).

As noted above, no such pattern is in evidence here.

For all these reasons, plaintiff has not adequately alleged the liability of the State of

Missouri. As such, to the extent that plaintiff is seeking injunctive relief against defendant Precythe

in her official capacity, the claim must be dismissed.

C. Claim against defendant Libby Banks in her Individual Capacity

Subsequent to his arrest, plaintiff states he was interviewed by defendant Banks, a field

7

enough evidence for her to issue a warrant, recommended he waive his preliminary hearing, and

later informed him that parole had been revoked. Plaintiff complains his parole should not have

been revoked because he did not receive a notice of revocation and was not afforded a hearing.

Plaintiff has not stated an individual capacity claim against defendant Banks. Individual

liability in a 42 U.S.C. § 1983 case is personal. 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 asserts his parole was revoked without written notice and a hearing.

However, he does not assert that defendant Banks personally revoked his parole. He only asserts

that she notified him of the revocation. Further, even if she had advised him to waive his

preliminary hearing regarding the pending criminal charges for which he was arrested, plaintiff

does not explain how defendant Banks’s actions qualifies as a constitutional violation. See

Livingston v. Missouri Dep’t of Corr. Div. of Prob. & Parole, No. 4:20-CV-1722-ACL, 2020 WL

7625156, at *3 (E.D. Mo. Dec. 18, 2020) (“matters pertaining to the parole process are governed

by state statute and are therefore matters of state law, without questions of constitutional

magnitude” and “because Missouri prisoners have no federally protected liberty interest in parole,

8

procedural, or substantive, due process grounds”). See also Moody v. Daggett, 429 U.S. 78, 86-89

(1976) (an inmate is not entitled to a prompt hearing where the parole violation warrant is simply

filed as a detainer at the institution of his confinement).

To the extent plaintiff can be understood to allege that defendant Banks violated a policy

or procedure of the MDPP, or Missouri law, such a claim is also subject to dismissal. It is well

established that “there is no constitutional liberty interest in having state officers follow state law

or prison officials follow prison regulations.” Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003).

See also Jenner v. Nikolas, 828 F.3d 713, 716-17 (8th Cir. 2016) (explaining that “[t]he existence

of a state-mandated procedural requirement does not, in and of itself, create a constitutionally

protected liberty interest”). Because plaintiff does not have a liberty interest in a state official

following state law, regulations, or procedures, he has not demonstrated a constitutional violation,

which is required for a 42 U.S.C. § 1983 claim.

For these reasons, plaintiff has failed to state an individual capacity claim against

defendant Banks.

Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. ECF 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 plaintiff’s motion for leave to proceed in forma pauperis [ECF

No. 2] is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $1.00 within

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

9

“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 [ECF 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 dismissal would not be taken in good

faith.

Dated this 19th day of October, 2023.

Sh RR

RODNHY W. SIPPE

UNITED STATES DISTRICT JUDGE

10