United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the motion of plaintiff
Larry Terrell Howard for leave to commence this civil action
without prepayment of the required filing fee. (Docket No.
2). Having reviewed the motion and the financial information
submitted in support, the Court finds that it should be
granted. Additionally, for the reasons discussed below, the
Court will dismiss this action without prejudice.
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,
malicious, or fails to state a claim upon which relief can be
granted. 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 is not required
to “accept as true any legal conclusion couched as a
reviewing a pro se complaint under § 1915(e)(2), 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 (8thCir.
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).
is a pro se litigant who was formerly incarcerated at the
Eastern Reception, Diagnostic and Correctional Center (ERDCC)
in Bonne Terre, Missouri. He brings this action pursuant to
42 U.S.C. § 1983, naming the ERDCC as defendant.
states that in August 2017, while an inmate at the ERDCC, he
placed an order with the canteen. (Docket No. 1 at 3).
Apparently, the order was in the amount of $32.93. (Docket
No. 1-1 at 3-4). Plaintiff alleges he never received this
order. (Docket No. 1 at 3). He further claims that he never
received a refund before he was released in December 2017.
Based on this, plaintiff is seeking $27, 000 in damages.
(Docket No. 1 at 5).
brings this civil action pursuant to 42 U.S.C. § 1983.
In order to state a claim, he “must allege sufficient
facts to show (1) that the defendant(s) acted under color of
state law, and (2) that the alleged wrongful conduct deprived
the plaintiff of a constitutionally protected federal
right.” Zutz v. Nelson, 601 F.3d 842, 848
(8th Cir. 2010). A plaintiff bringing a §
1983 action must include in his complaint “either
direct or inferential allegations respecting all the material
elements necessary to sustain a recovery under some viable
legal theory.” Brooks v. Roy, 776 F.3d 957,
960 (8th Cir. 2015).
sole defendant named in the complaint is the ERDCC, an
institution within the Missouri Department of Corrections.
The Department of Corrections is a department of the State of
Missouri. Thus, plaintiff's claim is actually against the
1983 provides for an action against a ‘person' for
a violation, under color of law, of another's civil
rights.” McLean v. Gordon, 548 F.3d 613, 618
(8th Cir. 2008). See also Deretich v. Office
of Admin. Hearings, 798 F.2d 1147, 1154 (8th
Cir. 1986) (stating that “[§] 1983 provides a
cause of action against persons only”). However,
“neither a State nor its officials acting in their
official capacity are ‘persons' under §
1983.” Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 (1989). See also Calzone v.
Hawley, 866 F.3d 866, 872 (8th Cir. 2017)
(stating that a “State is not a person under §
1983”); and Kruger v. Nebraska, 820 F.3d 295,
301 (8th Cir. 2016) (stating that “a state
is not a person for purposes of a claim for money damages
under § 1983”). Because the State of Missouri is
not a § 1983 “person, ” plaintiff cannot
assert all the elements of a § 1983 claim. Therefore,
this action must be dismissed for failure to state a claim.
plaintiff's claim against the State of Missouri is barred
by the doctrine of 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 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”); Dover Elevator Co. v. Ark.
State Univ., 64 F.3d 442, 446 (8th Cir. 1995)
(“The Eleventh Amendment bars private parties from
suing a state in federal court”); 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
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 exception to
Eleventh Amendment immunity is where Congress has statutorily
abrogated such 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 her
immunity “only where stated by the most express
language or by such overwhelming implications from the ...