Terry L. McIlvoy v. James Sharp

IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

TERRY MCILVOY, )

)

Appellant, )

)

v. ) WD78822

)

JAMES SHARP, ET AL., ) Opinion filed: February 9, 2016

)

Respondents. )

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI

THE HONORABLE DANIEL R. GREEN, JUDGE

Before Division Three: Joseph M. Ellis, Presiding Judge,

Karen King Mitchell, Judge and Gary D. Witt, Judge

Terry McIlvoy appeals from a judgment entered in the Circuit Court of Cole

County dismissing his pro se petition asserting § 1983 claims against assorted

government employees and agencies related to his treatment while incarcerated. For

the following reasons, the judgment is affirmed.

Appellant is incarcerated in the Jefferson City Correctional Center ("JCCC"). In

2013, Appellant worked in a furniture factory at JCCC operated by Missouri Vocational

Enterprises ("MVE"), a program within the Division of Offender Rehabilitative Services

of the Missouri Department of Corrections. On November 11, 2013, Appellant was

involved in a confrontation with James Sharp, a supervisor employed by MVE, after

Appellant had failed to turn off a machine before performing repairs on it.

On August 25, 2014, Appellant, acting pro se, filed his "Complaint Under the Civil

Rights Act U.S.C. § 1983" in the Circuit Court of Cole County against Sharp, JCCC, and

MVE. He also named as defendants Nick Miller, an investigator for JCCC; James Hess,

an administrative investigator for JCCC; and Amy Roderick, Inspector General for the

Department of Corrections. Appellant generally claimed that Sharp assaulted him on

November 11, 2013, by hitting him in the head three times with his fist,1 that he had

been retaliated against for filing a grievance regarding that assault, that his complaint

was not properly investigated, that Sharp had tampered with witnesses, and that all of

the individual defendants had deliberately tried to cover up the incident. He contended

that these actions violated his civil rights. Appellant sought two million dollars in

damages from each of the named individual defendants.2

On October 24, 2014, JCCC, MVE, Roderick, Miller, and Hess filed a motion to

dismiss Appellant's claims against them. JCCC and MVE asserted that they were

shielded from liability by sovereign immunity and that they were not "persons" capable

of being sued under § 1983. Roderick, Miller, and Hess asserted that they were entitled

to sovereign immunity, were not "persons" under § 1983 because they were sued in

their official rather than personal capacity, and were entitled to qualified immunity. They

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Appellant averred that Sharp hit him because he and a co-worker had previously failed to shut off the

power to a machine they had been working on and because Appellant was not answering questions being

asked by Sharp related thereto.

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Appellant also asked the court to charge and prosecute Sharp for second degree assault, order Sharp

fired and removed from the furniture factory, allow Appellant to watch Sharp being escorted out of the

prison, preclude Sharp from ever being allowed to work for the Department of Corrections again, order

the JCCC medical staff to provide Appellant with amodium lactate for his skin condition, to enter an order

precluding any retaliation against Appellant or witnesses on his behalf, and to preclude Sharp and MVE

from being represented by the Attorney General's Office.

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further contended that Appellant failed to include in his petition sufficient factual

allegations to state a cause of action against them.

Subsequently, Sharp filed a motion for summary judgment. He contended that,

by failing to expressly state that he was suing Sharp in his personal capacity, Appellant

must be presumed to have only sued him in his official capacity and that Appellant's

claims against him were, therefore, barred by sovereign immunity. Sharp further

claimed to be entitled to qualified immunity. He also contended that Appellant could not

establish that he used excessive force against him based upon videotape footage of the

incident and the fact that Appellant required no medical attention. Sharp further argued

that Appellant could not establish any prejudice resulting from any witness tampering

because the videotape conclusively refuted Appellant's administrative complaint. Lastly,

Sharp argued that Appellant would not be able to prove that he played any role in the

alleged retaliation against him because he had no authority to place Appellant in "the

Hole," change Appellant's housing assignments, or determine Appellant's work

assignments.

The trial court eventually entered an order granting the motion to dismiss the

claims against JCCC, MVE, Roderick, Miller, and Hess "for the reasons set forth in the

motion." It later issued its judgment granting Sharp's motion for summary judgment "for

the reasons set forth in [that] motion" and dismissing Appellant's claims against Sharp.

No specific findings of fact or conclusions of law were offered by the trial court in making

either ruling.

Again acting pro se, Appellant brings eleven points on appeal challenging the

trial court's dismissal of his claims against the various defendants, many of which are

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difficult to decipher or to ascertain the legal theory being advanced. In any event, the

trial court's granting of the motion to dismiss the claims against JCCC, MVE, Roderick,

Miller, and Hess, as well as its decision to enter summary judgment in favor of Sharp,

are determinations that this Court reviews de novo and that we must affirm if properly

entered for any of the reasons set forth in those motions. Kixmiller v. Board of

Curators of Lincoln Univ., 341 S.W.3d 711, 713 (Mo. App. W.D. 2011); Voyles v.

Voyles, 388 S.W.3d 169, 171-72 (Mo. App. E.D. 2012). Accordingly, we will conduct

our review by determining whether a reason stated in each of those respective motions

justified the trial court's decision to grant the motion.

We begin by analyzing whether the claims against JCCC, MVE, Roderick, Miller,

and Hess were properly dismissed for failure to state a claim on which relief could be

granted. "A motion to dismiss for failure to state a cause of action is solely a test of the

adequacy of the plaintiff's petition." Stephens v. Dunn, 453 S.W.3d 241, 248 (Mo. App.

S.D. 2014) (internal quotation omitted). "This Court does not attempt to weigh whether

the alleged facts are credible or persuasive." Harris v. Presson, 445 S.W.3d 127, 129

(Mo. App. E.D. 2014) (internal quotation omitted). "Rather, we accept all properly

pleaded facts as true, giving the pleadings their broadest intendment, and we construe

all allegations favorably to the pleader to determine if the facts alleged meet the

elements of a recognized cause of action, or of a cause that might be adopted in that

case." Id. (internal quotations omitted). This Court "must affirm the trial court's ruling if

the motion to dismiss could have been sustained on any of the meritorious grounds

raised in the motion regardless of whether the trial court ruled on that particular ground."

Kixmiller, 341 S.W.3d at 713.

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JCCC and MVE are public entities and, as such, subject to some limited

exceptions,3 are afforded sovereign immunity from tort actions under § 537.600.1.

O'Dell v. Missouri Dep't of Corrections, 21 S.W.3d 54, 57 (Mo. App. E.D. 2000).

"Missouri courts have routinely held that sovereign immunity is not an affirmative

defense and that the plaintiff bears the burden of pleading with specificity facts giving

rise to an exception to sovereign immunity when suing a public entity." Richardson v.

City of St. Louis, 293 S.W.3d 133, 137 (Mo. App. E.D. 2009). Appellant's petition does

not identify any exception to sovereign immunity that might be applicable to this case,

nor does it set forth facts that would give rise to any recognized exception to sovereign

immunity. Since he failed to plead facts giving rise to an exception to sovereign

immunity, Appellant did not state a claim for which relief could be granted against JCCC

or MVE, and the trial court properly dismissed his claims against them. Phelps v. City

of Kansas City, 371 S.W.3d 909, 916-17 (Mo. App. W.D. 2012).

We next assess whether the claims against Roderick, Miller, and Hess were

properly dismissed for failure to state a claim. "The role of pleadings in Missouri is to

identify facts upon which the plaintiff's claim rests."4 Thomas v. Denney, 453 S.W.3d

325, 332 (Mo. App. W.D. 2014) (internal quotation omitted). "Under Missouri pleading

rules, to state a claim, a petition must invoke substantive principles of law entitling the

plaintiff to relief and allege ultimate facts informing the defendant of what the plaintiff will

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"A public entity with the status of a governmental body . . . is immune from suit for liability in tort in the

absence of an express statutory provision." Wyman v. Missouri Dep't of Mental Health, 376 S.W.3d

16, 19 (Mo. App. W.D. 2012). "In the absence of an express waiver in a particular statute, a [public entity]

generally has sovereign immunity from common-law tort actions in all but three circumstances: negligent

operation of a motor vehicle, § 537.600.1(1); a dangerous condition on public property, § 537.600.1(2);

and where the entity has purchased liability insurance (but only to the extent of the policy's coverage), §

537.610." Id.

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"Unlike the 'notice pleading' requirements of the federal courts, Missouri courts apply a 'fact pleading'

standard." Charron v. Holden, 111 S.W.3d 553, 555 (Mo. App. W.D. 2003).

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attempt to establish at trial." Charron v. Holden, 111 S.W.3d 553, 555 (Mo. App. W.D.

2003). "The petition must state allegations of fact in support of each essential element

of the cause pled." Thomas, 453 S.W.3d at 332. "If a petition consists only of

conclusions and does not contain ultimate facts or any allegations from which to infer

those facts, a motion to dismiss is properly granted." Id.

"Section 1983 allows a person who has had 'any rights, privileges, or immunities

secured by the Constitution' violated by another, under the color of state law, to sue the

violator for damages." Copeland v. Wicks, 468 S.W.3d 886, 890 (Mo. 2015). In order

to successfully bring a claim under § 1983, a plaintiff must plead and prove (1) that the

defendant deprived the plaintiff "of a right, privilege, or immunity secured by the

Constitution or the laws of the United States" and (2) that the defendant "was acting

under the color of state law at the time of the conduct constituting the deprivation."

France v. Hunter, 368 S.W.3d 279, 286 (Mo. App. S.D. 2012). "Liability under section

1983 requires a causal link to, and direct responsibility for, the deprivation of rights."

Bell v. Phillips, 465 S.W.3d 544, 548 (Mo. App. W.D. 2015) (internal quotation

omitted). "To state a § 1983 claim, a plaintiff must allege facts supporting any individual

defendant's personal involvement or responsibility for the violations." Id. (internal

quotation omitted). Assertions of bare, conclusory allegations are not sufficient to state

a claim. Charron, 111 S.W.3d at 555.

In his petition, Appellant does not plead any facts establishing that Roderick,

Miller, and Hess had any personal involvement with or responsibility for any deprivation

of his constitutional or statutory rights. Indeed, none of the pleadings specifically refer

to any of those individuals or identify any specific act committed by them.

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Appellant has asserted in his suggestions in opposition to the motion to dismiss

and on appeal that these individuals attempted "to cover up and sweep this incident

under the rug," failed to do their jobs, failed to interview his witnesses, failed to escort

Sharp out of the factory after Appellant reported that Sharp had hit him, and somehow

participated in acts of retaliation against him. Even if averments of that nature had been

included in his petition, such allegations would not be sufficient to state a claim against

those defendants. The allegations related to a cover-up and to retaliation are wholly

conclusory in nature, and the remaining allegations do not establish a violation of any

right held by Appellant.

Because Appellant's petition did not allege facts establishing that Roderick,

Miller, or Hess were personally involved in or responsible for any deprivation of his

rights, he failed to state a cause of action against them. Accordingly, the trial court did

not err in dismissing Appellant's claims against those defendants.

We next consider whether summary judgment was properly entered in favor of

Sharp. Because the trial court makes its decision to grant summary judgment based

upon the record submitted and the law, this Court need not defer to the trial court's

determination and reviews the grant of summary judgment de novo. Crow v. Kansas

City Power & Light Co., 174 S.W.3d 523, 533 (Mo. App. W.D. 2005). In so doing, we

apply the same criteria as the trial court to determine whether summary judgment was

properly entered. Bauer v. Farmers Ins. Co., 270 S.W.3d 491, 494 (Mo. App. W.D.

2008).

Summary judgment is only proper if the moving party establishes that there is no

genuine issue as to the material facts and that the movant is entitled to judgment as a

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matter of law.5 Bauer, 270 S.W.3d at 494. "A defending party . . . may establish a right

to summary judgment by demonstrating: (1) facts negating any one of the elements of

the non-movant's claim; (2) that the non-movant, after an adequate period for discovery,

has not been able and will not be able to produce sufficient evidence to allow the trier of

fact to find the existence of any one of the elements of the non-movant's claim; or (3)

that there is no genuine dispute as to the existence of the facts necessary to support

movant's properly pleaded affirmative defense." Goerlitz v. City of Maryville, 333

S.W.3d 450, 453 (Mo. banc 2011) (internal quotation omitted). "Each of these three

methods individually establishes the right to judgment as a matter of law." Id. (internal

quotation omitted).

In assessing whether summary judgment is proper, "[t]he record below is

reviewed in the light most favorable to the party against whom summary judgment was

entered, and that party is entitled to the benefit of all reasonable inferences from the

record." Hammack v. Coffelt Land Title, Inc., 284 S.W.3d 175, 177-78 (Mo. App.

W.D. 2009). "However, facts contained in affidavits or otherwise in support of a party's

motion are accepted as true unless contradicted by the non-moving party's response to

the summary judgment motion." Id. at 178 (internal quotation omitted). "The non-

movant demonstrates a genuine issue of material fact by denying the allegations and

citing specific references to the discovery, exhibits, or affidavits showing a genuine

issue for trial." Olson v. Curators of the Univ. of Mo., 381 S.W.3d 406, 410 (Mo. App.

W.D. 2012) (citing Rule 74.04(c)(2)). "Where a motion for summary judgment is made

and supported, . . . the opposing party may not rest upon the mere allegations or

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"A 'genuine issue' exists where the record contains competent materials that evidence two plausible,

but contradictory, accounts of the essential facts." ITT Commercial Fin. Corp. v. Mid-America Marine

Supply Corp., 854 S.W.2d 371, 382 (Mo. banc 1993).

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denials of the party's pleading" and must "support each denial with specific references

to the discovery, exhibits or affidavits that demonstrate specific facts showing that there

is a genuine issue for trial." Brehm v. Bacon Twp., 426 S.W.3d 1, 6 (Mo. banc 2014).

"When the trial court's order does not state the reasons for its grant of summary

judgment, we presume that it is on the grounds specified in the movant's motion for

summary judgment." Lucero v. Curators of the Univ. of Mo., 400 S.W.3d 1, 4 (Mo.

App. W.D. 2013) (internal quotation omitted). "We may affirm the circuit court's grant of

summary judgment under any theory that is supported by the record." Id. (internal

quotation omitted).

In cases by inmates alleging excessive force in violation of the Eighth and

Fourteenth Amendments, the "core judicial inquiry" is "whether force was applied in a

good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause

harm." Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S.Ct. 1175, 1178, 175 L.Ed.2d 995

(2010) (internal quotation omitted). The focus is on the nature of the force utilized,

"specifically, whether it was nontrivial and was applied maliciously and sadistically to

cause harm." Id. 559 U.S. at 39, 130 S.Ct. at 1179 (internal quotation omitted).

Not every malevolent touch by a prison employee violates a prisoner's

constitutional rights and gives rise to an action under § 1983. Hudson v. McMillian,

503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992). The prohibition on cruel

and unusual punishments "necessarily excludes from constitutional recognition de

minimus uses of physical force, provided that the use of force is not of a sort repugnant

to the conscience of mankind." Wilkins, 559 U.S. at 37-38, 130 S.Ct. at 1178. "An

inmate who complains of a 'push or shove' that causes no discernible injury almost

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certainly fails to state a valid excessive force claim." Id. 559 U.S. at 37, 130 S.Ct. at

1178.

In the case at bar, Appellant claimed in his petition that Sharp hit him on the head

three times with his fist as though he was "knocking on a door." He stated that Sharp

had done so because Appellant had failed to shut off the power to a machine he had

been repairing and because Appellant refused to respond to questions posed by Sharp

about that violation of factory rules.6 Appellant did not aver in his petition or in response

to the motion for summary judgment that he suffered any injury or experienced

significant pain as a result of Sharp hitting him on the head, and he expressly stated in

his petition that no medical treatment was involved in his claims.

Accepting Appellant's version of the incident as true, the physical contact

involved in this case is simply not sufficient to rise to the level of a violation of

Appellant's constitutional rights. While the alleged physical contact, if found not to have

been justified, might have been able to support a common law claim for battery, it does

not rise to the level necessary to establish an excessive force claim under § 1983. Id.

Accordingly, the trial court did not err in entering summary judgment in favor of Sharp

on Appellant's § 1983 excessive force claim.

With regard to his claim of witness tampering, Appellant alleged that "there was a

lot of witness Tampering by James Sharp with a lot of Inmate Employees." Aside from

this wholly insufficient conclusory allegation, the only specific factual pleading offered by

Appellant related to this claim was that Sharp gave Gary Jackman, who witnessed the

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His petition states, "Sharp hit the Plaintiff in the head 3 times with his fist, 'like you were knocking on a

door', Because the Plaintiff and his Co-worker Gary Jackman forgot to shut off the Power to the Machine

the Plaintiff and his Co-worker were working on, and because the Plaintiff refused to answer James

Sharp."

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underlying altercation, a pay raise "to keep his mouth shut and say he Did Not See

anything." Appellant did not indicate how such behavior violated his rights or how he

was damaged thereby. In fact, Appellant averred that, if called to testify, Jackman

would testify truthfully. The trial court did not err in entering summary judgment in favor

of Sharp on Appellant's § 1983 claim based on witness bribery and tampering.

In addressing Appellant's retaliation claims, in his statement of uncontroverted

facts, Sharp averred that he "did not control decisions [Appellant] believed were

retaliatory, including housing assignments and assignments to protective custody." He

further averred that Appellant's application for a new work assignment was not reviewed

by him and that the decision to deny his job request was made by the manager of the

Graphic Arts Factory for non-retaliatory reasons. Those averments were supported by

attached affidavits.

In response, while he generally denied those statements of uncontroverted fact,

Appellant failed to support those denials with references to any discovery, exhibits, or

affidavits demonstrating that there is a genuine issue for trial as required by Rule

74.04(c)(2). Since Appellant's denials were not properly supported, Sharp's statements

of uncontroverted fact must be deemed admitted. Central Trust & Inv. Co. v.

Signalpoint Asset Mgmt., LLC, 422 S.W.3d 312, 320 (Mo. banc 2014). As the

uncontroverted facts establish that Sharp was not involved in the allegedly retaliatory

acts, the trial court did not err in entering summary judgment in favor of Sharp on the §

1983 related thereto.

Finally, with regard to Appellant's claims that his allegations were inadequately

investigated, Sharp's motion for summary judgment asserted as an uncontroverted fact

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that his only part in the investigation was giving a statement to an investigator regarding

the incident and that the investigation was conducted by independent investigators. In

response, while Appellant generally claimed that Sharp's statement to investigators

influenced the investigation, he failed to identify any responsibility Sharp bore related to

how the investigation was conducted and failed to support his denial with any reference

to discovery, exhibits, or affidavits. Accordingly, Sharp's stated uncontroverted facts

must again be deemed to have been admitted. Id. Based upon the uncontroverted fact

that Sharp was not responsible in any way for investigating Appellant's complaint, the

trial court properly entered summary judgment in his favor on Appellant's § 1983 claims

against him related to how the investigation was conducted.

In short, the trial court properly entered summary judgment in favor of Sharp on

all of Appellant's § 1983 claims directed toward him. Likewise, the trial court properly

dismissed the claims against the other defendants for failing to state a claim.

A couple of Appellant's points challenging the trial court's disposition of the case

touch on ancillary issues that we will gratuitously address though those points and

arguments related thereto are improperly framed as challenges to the decision to

dismiss his claims. In one of his points, Appellant contends that judgment was

improperly entered against him because the trial court denied 42 different motions filed

by him in the case and granted all 20 of the motions that had been filed by the State.

He contends that this demonstrates that the trial court was biased and prejudiced

against him.

Appellant offers no argument that the motions filed by him were erroneously

denied or that the motions filed by the State were improperly granted aside from

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claiming that his two motions for appointment of counsel were erroneously denied

because Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 9 L.Ed.2d 799

(1963), mandated the appointment of counsel for him as a criminal defendant.

Obviously, since Appellant is a civil plaintiff and not a criminal defendant in the case at

bar, Gideon has no application to this case, and the trial court's rulings could not be

deemed erroneous on that basis.

The mere fact that the trial court granted all of the State's motions and denied all

of Appellant's motions does not, in and of itself, establish bias or prejudice on the part of

the trial court or that the entry of judgment in favor of the defendants was improper.

Point denied.

In his remaining point, Appellant contends that his claims were improperly

dismissed because his discovery requests were not fully complied with by the State and

the trial court denied his requests to compel that discovery. Appellant argues that the

State refused to provide him an unedited copy of the videotape and failed to produce

other unspecified discovery.

In this point and the argument related thereto, Appellant fails to identify the

appropriate standard of review as required by Rule 84.04(e), to identify the specific

rulings of the trial court being challenged, or to offer any legal argument as to why the

trial court's rulings on the motions to compel were erroneous. This point and argument

simply have not been developed sufficiently to allow for meaningful appellate review.

"[W]here a brief is so defective as to require the appellate court and opposing counsel to

hypothesize about the appellant's argument and precedential support for it, the merits

cannot be reached." City of Lee's Summit v. Cook, 337 S.W.3d 757, 759 (Mo. App.

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W.D. 2011). "Speculation on an appellant's arguments is not permitted by the appellate

courts because such speculation would cast the court in the role of an advocate for the

appellant." Willis v. Missouri Farm Bureau Servs., 396 S.W.3d 451, 454 (Mo. App.

W.D. 2013) (internal quotation omitted). The point is, therefore, denied.

For the foregoing reasons, the judgment of the trial court is affirmed.

________________________________

Joseph M. Ellis, Judge

All concur.

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