United States District Court, E.D. Missouri, Eastern Division
KELVIN C. THOMPSON, Plaintiff,
JOSEPH MARCANTANO, Defendant.
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE
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. 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
Standard on Initial Review
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.
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
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.
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
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.
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).
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.
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).
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 ...