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Thompson v. Marcantano

United States District Court, E.D. Missouri, Eastern Division

August 28, 2019




         This matter is before the Court upon the motion of pro se plaintiff Kelvin C. Thompson for leave to proceed in forma pauperis in this civil action.[1] Upon consideration of the motion and the financial information provided in support, the Court concludes that plaintiff is unable to pay the filing fee. The motion will therefore be granted. See 28 U.S.C. § 1915(a). Additionally, for the reasons discussed below, the Court will dismiss this action without prejudice for failure to state a claim and for frivolity.

         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, is malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. To state a claim for relief, a complaint must plead more than “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Id. at 679. “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 on its judicial experience and common sense. Id. at 679.

         When reviewing a pro se complaint under 28 U.S.C. § 1915, the Court accepts the well-pled facts as true, White v. Clark, 750 F.2d 721, 722 (8th Cir. 1984), and liberally construes the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007); 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) (refusing to supply additional facts or to construct a legal theory for the pro se plaintiff that assumed facts that had not been pleaded).

         The Complaint

          Plaintiff brings this action against Sergeant Joseph Marcantano of the St. Louis Metropolitan Police Department. Plaintiff invokes this Court’s federal question jurisdiction, and states he brings his case pursuant to Title VI of the Civil Rights Act of 1964; Title II of the Americans with Disabilities Act of 1990; the Rehabilitation Act; 18 U.S.C. §§ 241-242, 245; Title VII of the Civil Rights Act; the Civil Rights Act of 1866 (42 U.S.C. § 1981); and 34 U.S.C. § 12601.

         Plaintiff states that in August 2019, after dropping off his daughter at work, he was in a minor motor vehicle accident in the City of St. Louis with a “white lady” whose vehicle had a Florida license plate. Doc. 1 at 5. Plaintiff describes himself as an “African American man.” After the accident, while exchanging insurance information, the discussion between plaintiff and the lady became heated and plaintiff left. The following day, when plaintiff was picking up his daughter from work, he saw the same lady again. He confronted her, accused her of harassing and stalking him, and then he called 911 because he felt threatened. When a St. Louis police officer arrived, plaintiff explained the previous day’s motor vehicle accident and that he felt the lady was harassing and stalking him and/or his daughter. Id. After the police officer spoke to the lady, the officer told plaintiff the lady was a guest in a nearby hotel and that was why she was in the same general vicinity as plaintiff’s daughter’s work location for two days in a row. Plaintiff asserts that the lady was lying, and the police officer should not have believed her. Unsatisfied, plaintiff drove to a nearby police precinct. He again called 911 out of fear for his safety. The 911 operator contacted the precinct and sent Sergeant Marcantano to the window. Marcantano also told plaintiff the lady was a guest at the nearby hotel and refused to write up a police report on the incident.

         In summary, plaintiff alleges that multiple police officers, including defendant Sergeant Marcantano, failed to make a police report after plaintiff reported that a woman hit his car and harassed and stalked him and/or his daughter. He characterizes the refusal to make a police report as a “blatant example of racial discrimination, civil rights violations, and of Police bonding together [and] conspiring to deny every citizen[’]s right to be protected and fairly treated.” Doc. 1 at 6. Plaintiff states that he believes if he were a white person making the same allegations, a police report would have been made. He asks the Department of Justice and this Court to “reprimand, fire, fine and punish all the racist, rogue, police officers in the St. Louis Metropolitan Police Department.” He seeks “$100,000 in actual damages and $1,000,000 million in punitive damages.” Id. at 6-7.


         Having carefully reviewed and liberally construed the complaint, the Court concludes that it must be dismissed. Plaintiff states he brings this action pursuant to various federal statutes, but none provide him with a plausible cause of action under the facts as alleged. There is no allegations plaintiff had an employment relationship with the defendant or any person mentioned in the complaint; therefore, Title VII of the Civil Rights Act is inapplicable. Plaintiff does not allege he suffers from a disability, nor does he set forth non-conclusory allegations that the defendant purposefully and intentionally discriminated against him because of his race, color, or national origin. As a result, the ADA, Title VI of the Civil Rights Act, the Rehabilitation Act, and 42 U.S.C. § 1981 are unavailing. There is no private right of action under 34 U.S.C. § 12601, as only the Attorney General may bring a civil action under that statute. Horde v. Elliot, 2018 WL 987683 (D. Minn. Jan. 9, 2018). Similarly, 18 U.S.C. §§ 241-242 and 245 are criminal statutes that provide no basis for any private cause of action. See U.S. v. Wadena, 152 F.3d 831, 846 (8th Cir. 1998) (“Courts have repeatedly held that there is no private right of action under [18 U.S.C.] § 241[.]”); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (stating that only a United States prosecutor can bring a complaint under 18 U.S.C. §§ 241-242); Roberson v. Pearson, 2012 WL 4128303, at *1 (D. Minn. 2012) (18 U.S.C. § 245 is a federal criminal statute that does not provide for a private right of action).

         Plaintiff alleges that a state actor violated his civil rights. Therefore, his exclusive federal damages remedy lies in 42 U.S.C. § 1983. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731-32 (1989) (Section 1983 provides the exclusive federal damages remedy for the violation of rights guaranteed by § 1981 when the alleged violation is by a state actor). However, the Court has considered whether plaintiff has stated a viable claim under 42 U.S.C. § 1983, and concludes he has not.

         To state a claim under 42 U.S.C. § 1983, a plaintiff must establish: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged deprivation of that right was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff has named Sergeant Joseph Marcantano as the sole defendant. Liberally construing the allegations of plaintiff’s complaint, plaintiff seems to be making an equal protection claim based on alleged racial discrimination. See Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (“If the essence of an allegation is discernible . . . then the district court should construe the complaint in a way that permits the layperson’s claim to be considered within the proper legal framework.”) (quotations and citation omitted).

         The Equal Protection Clause provides, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “The purpose of the equal protection clause . . . is to secure every person within the state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Sunday Lake Iron Co. v. Wakefield Twp., 247 U.S. 350, 352 (1918). Unequal treatment of “those who are entitled to be treated alike[] is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.” Batra v. Board of Regents of Univ. of Neb., 79 F.3d 717, 721 (8th Cir. 1996) (quoting Snowden v. Hughes, 321 U.S. 1, 8 (1944)). “The good faith of [state] officers and the validity of their actions are presumed; when assailed, the burden of proof is upon the complaining ...

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