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Postawko v. Precythe

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

November 15, 2019

MICHAEL G. POSTAWKO, Plaintiff,
v.
ANNE L. PRECYTHE, et al., Defendants.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court upon review of plaintiff Michael G. Postawko's complaint pursuant to 28 U.S.C. § 1915A. For the reasons discussed below, the Court will dismiss the official capacity claims against all defendants; the individual capacity claims against defendants Anne Precythe, Cyndi Prudden, Troy Steele, Nicole Francis, Unknown Leggit, and Richard Tippen; and the state law claims brought against all defendants. However, the Court will direct defendant Scott Flieg to answer plaintiff's individual capacity claim that he retaliated against plaintiff in violation of the First Amendment.

         28 U.S.C. § 1915A

         Under 28 U.S.C. § 1915A, the Court is required to review a civil complaint “in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915(A)(a). The Court must dismiss a complaint if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915(A)(b)(1).

         To state a claim under 42 U.S.C. § 1983, 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 “does not accept as true any legal conclusion couched as a factual allegation”).

         When reviewing a pro se complaint, 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).

         The Complaint

         At the time relevant to this complaint, plaintiff was an inmate at the Eastern Reception, Diagnostic & Correctional Center (ERDCC) in Bonne Terre, Missouri. (Docket No. 1-3 at 4). He brings this action under 42 U.S.C. § 1983 and article 1, section 10 of the Missouri Constitution. (Docket No. 1-3 at 3). He names as defendants Anne Precythe; Cyndi Prudden; Troy Steele; Nicole Francis; Scott Flieg; Unknown Leggit; and Richard Tippen. Defendants are sued in both their official and individual capacities. Plaintiff alleges that defendants retaliated against him for his repeated use of the prison's grievance system and for filing lawsuits. The complaint consists of thirty-five handwritten pages and twenty-six exhibits.[1] Plaintiff further supplemented his complaint by filing exhibits twenty-seven through thirty on December 17, 2018. (Docket No. 11).

         Plaintiff states that on June 3, 2017, he was returning to his cell following lunch. (Docket No. 1-3 at 5). When he arrived at his cell, the housing unit officer at the “control bubble” denied him entry by refusing to open his door. Meanwhile, other inmates who were returning from lunch were allowed into their cells.

         Approximately twenty minutes later, plaintiff's cellmate, defendant Tippen, returned to the cell. Five or so minutes later, defendant Flieg, a correctional officer, came onto the wing and approached plaintiff and Tippen. Plaintiff states that Officer Flieg told them to “have a seat” at a table because he was going to search their cell. Plaintiff and Tippen complied, and Officer Flieg opened their cell door.

         Once inside the cell, plaintiff claims that Officer Flieg pulled the cell door so that it was almost closed, just short of locking. (Docket No. 1-3 at 6). Next, plaintiff alleges that Officer Flieg covered the cell-door window with a piece of newspaper. According to plaintiff, Officer Flieg remained alone inside their cell for approximately ten minutes. When he emerged, wearing “blue surgical type sterile gloves, ” he had nothing in his hands.

         Officer Flieg directed plaintiff to accompany him to a sally port, where Flieg patted him down, placed him in handcuffs, and seated him on a stool in the housing unit caseworker's office. Eventually, Sergeant Anna Brawley arrived. Sergeant Brawley asked plaintiff what he was doing with a razor blade in his clock radio. (Docket No. 1-3 at 7). Plaintiff replied that he had no idea there was a razor blade in his clock radio and denied that it belonged to him. When he asked to see the razor blade, he was informed that it had already been disposed.[2] Plaintiff asserts that he never saw the actual razor blade that was allegedly removed from his clock radio.

         Plaintiff states that defendant Tippen, his cellmate, never received a conduct violation, despite the razor being discovered in a clock radio that sat upon a mutually-shared desk within the cell. (Docket No. 1-3 at 8). He also states that no attempts were made to retrieve fingerprints from the razor before it was disposed. Further, because the razor was disposed, it was not produced at the disciplinary hearing. Instead, only a photograph of the alleged razor was presented.

         Plaintiff's disciplinary hearing began on June 12, 2017. (Docket No. 1-3 at 9). The hearing officer was defendant Francis. The June 12th hearing was “tabled” so that Officer Francis could interview plaintiff's sole witness, his cellmate Tippen. Plaintiff's disciplinary hearing was reconvened on June 23, 2017. Plaintiff claims this was an “unusually long time” for his hearing to be delayed, and that interviewing a witness should not have constituted an extenuating circumstance such that his hearing should have been tabled in the first place. He further states that he was denied inmate counsel because he was not being charged with a “major violation.”

         At the hearing, plaintiff submitted a statement and a “list of exculpatory evidences.” During the hearing, plaintiff alleges that Officer Francis told him that “your evidence is very compelling.” (Docket No. 1-3 at 10). Nevertheless, Officer Francis found him guilty of the violation on June 23, 2017. In so finding, Officer Francis relied on Officer Flieg's report that he had found a loose razor blade in the battery compartment of plaintiff's clock radio during a routine cell search. (Docket No. 1-3 at 43). Plaintiff notes that Officer Francis' report did not mention the photograph of the alleged razor blade taken from his cell.[3] (Docket No. 1-3 at 11).

         Plaintiff states that he received this conduct violation eight days after filing an informal resolution request (IRR), which is the first step in the grievance process. (Docket No. 1-3 at 10). His grievance alleged that “the prison had removed envelopes from a packet” from his attorney without his knowledge, permission, or a warrant. Plaintiff further notes that he has two pending civil actions pursuant to 42 U.S.C. § 1983, both of which name the Missouri Department of Corrections and its medical contractor as defendants. The second of these lawsuits is Postawko v. Corizon, Inc., et al., No. 2:16-cv-04219 (W.D. Mo.), a class action lawsuit in which plaintiff is represented by the American Civil Liberties Union and the MacArthur Justice Center. According to plaintiff, this class action lawsuit could potentially cost the Missouri Department of Corrections over five-hundred million dollars to resolve. (Docket No. 1-3 at 11).

         Plaintiff lists a number of so-called anomalies that he insists cast doubts on his disciplinary hearing and the underlying conduct violation. First, he states that in his twenty-two plus years as an inmate, he has never seen a cell-door window covered during a cell search. Second, he points to the “unusually long duration of time to hear this minor violation.” Finally, plaintiff asserts that only a few weeks prior to his alleged conduct violation, he was laterally transferred from Jefferson City Correctional Center (JCCC) to ERDCC. (Docket No. 1-3 at 12). He states that he did not request this transfer and that his razor blade violation at ERDCC is the first such violation during plaintiff's twenty-two years of incarceration. (Docket No. 1-3 at 12-13). Plaintiff concludes that the transfer from JCCC to ERDCC, and the subsequent conduct violation at ERDCC, is retaliation for his filing of lawsuits.

         Several months after his conduct violation, plaintiff learned from fellow inmate Eugene LaMartina that an anonymous letter had been sent to the housing unit caseworker prior to the search of plaintiff's cell. (Docket No. 1-3 at 13). According to LaMartina, the letter stated that plaintiff had contraband, and that defendants Francis and Leggit had positively identified the handwriting in the anonymous letter as that of defendant Tippen. Plaintiff states that information concerning this putative letter was never mentioned or submitted as evidence at the disciplinary hearing.

         On June 3, 2017, the day of plaintiff's conduct violation, he states that he was sitting in his cell waiting to go to lunch when he noticed that the trash bag beneath the sink was full. (Docket No. 1-3 at 14). He was going to empty it when his cell was opened for lunch, but forgot. However, after Sergeant Brawley allowed him to return to his cell after the cell search, he noticed that the trash had been emptied. Plaintiff asked his cellmate, Tippen, if he had emptied the trash, and Tippen replied “no.” He states that he would have noticed if Officer Flieg had emptied the trash during the cell search, and asserts that it is unreasonable to think that this would have happened anyway. Instead, plaintiff states that the logical deduction is that defendant Tippen emptied the trash bag before leaving for lunch and then lied about it. (Docket No. 1-3 at 15).

         Plaintiff states that following his finding of guilt, he timely filed an IRR to initiate an appeal of his conduct violation. He also sent letters to defendants Precythe, Prudden, and Steele, but received no responses from them. In his letters, plaintiff requested that he be administered a “constant voice stress analysis” (CVSA) at his own expense.[4] (Docket No. 1-3 at 67-68). He also requested that defendants Flieg and Tippen “be officially asked to volunteer” for the CVSA to show that they had “nothing to hide.” (Docket No. 1-3 at 67).

         Plaintiff's complaint contains a section listing what plaintiff asserts are “exculpable evidences.” (Docket No. 1-3 at 16). He alleges that based on his two pending § 1983 actions, the defendants had “proper motives for retaliation, ” and thus, he “may be innocent of the charge.” He further states that an inmate is never the sole person with access to his personal property, and that it is common for inmates to hide their contraband in the property of others. (Docket No. 1-3 at 17). Plaintiff also notes that the covering of the window in his cell door suggests that the search of his cell was not “routine.”

         Plaintiff notes that he has not had a major conduct violation or contraband violation in twenty-two years of incarceration. At the time of his conduct violation, he had been entirely violation-free for the previous seven years. Plaintiff states that eight days prior to the conduct violation, he filed a grievance regarding the alleged tampering of his mail, which suggests retaliation. Moreover, three weeks prior to the conduct violation, he had counsel appointed in one of his federal civil rights cases.[5] Plaintiff states that he is serving two parole-eligible life sentences, and at the time of the conduct violation, he was less than three years from his first opportunity at parole. (Docket No. 1-3 at 18). As such, he asserts he would not take such a stupid and senseless risk as to hide a razor in his clock radio. Plaintiff alleges that this “large amount of exculpable evidence” was disregarded by the hearing officer in violation of his due process rights. (Docket No. 1-3 at 19).

         Plaintiff requests that the Court enter an order declaring each defendant guilty and finding them liable for damages in an amount that the Court deems adequate and sufficient. (Docket No. 1-3 at 31-32). He also seeks an injunctive order to “expunge all traces” of his conduct violation report from his prison records and files. (Docket No. 1-3 at 32).

         Plaintiff initially filed this case in the Circuit Court of St. Francois County, Missouri, on May 11, 2018. The case was docketed as Postawko v. Prerythe, [6] No. 18SF-CC00082 (24thJudicial Circuit, St. Francois County). On June 29, 2018, defendants Precythe, Steele, and Flieg filed a notice of removal from St. Francois County Circuit Court to the United States District Court for the Eastern District of Missouri. (Docket No. 1).

         Discussion

         Plaintiff brings this action under 42 U.S.C. § 1983 and article 1, section 10 of the Missouri Constitution. (Docket No. 1-3 at 3). He names as defendants Anne Precythe; Cyndi Prudden; Troy Steele; Nicole Francis; Scott Flieg; Unknown Leggit; and Richard Tippen. Defendants are sued in both their official and individual capacities. Plaintiff alleges that defendants retaliated against him for his use of the grievance system and for his filing of lawsuits. The nature of this retaliation concerns a conduct violation of which plaintiff insists he is innocent. For the reasons discussed below, the Court must dismiss all of plaintiff's official capacity claims for failure to state a claim. The Court must also dismiss plaintiff's individual capacity claims against defendants Precythe, Prudden, Steele, Francis, Leggit, and Tippen. However, the Court will direct the Clerk of Court to issue process upon defendant Flieg in his individual capacity on plaintiff's First Amendment retaliation claim.

         A. Official Capacity Claims

         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 her official capacity is merely a suit against the public employer.” Johnson v. Outboard Marine 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 ‚Äúsuit against a public official in his official capacity is ...


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