Livingston v. Mo. Dep't of Corr. Div. of Prob.
| Decision Date | 18 December 2020 |
| Docket Number | Case No. 4:20-CV-1722-ACL |
| Parties | BERRY L. LIVINGSTON, Plaintiff, v. MISSOURI DEPARTMENT OF CORRECTIONS DIVISION OF PROBATION AND PAROLE, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on the motion of self-represented plaintiff Berry L. Livingston for leave to commence this civil rights action pursuant to 42 U.S.C. § 1983 without prepayment of the required filing fee. ECF No. 2. Having reviewed the motion and the financial information submitted in support, the Court will grant the motion and waive the filing fee in this matter. See 28 U.S.C. § 1915(a)(1). Additionally, the Court has reviewed the complaint and will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
Under 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 may be granted. An action is frivolous if it "lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon which relief may be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
"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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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 assume the veracity of well-pleaded facts but need not accept as true "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. at 678 (citing Twombly, 550 U.S. at 555).
This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429 U.S. 97, 106 (1976). This means that "if the essence of an allegation is discernible," the court should "construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework." Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even self-represented complaints must 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). Federal courts are not required to assume facts that are not alleged, Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules in order to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).
Plaintiff, who indicates he is currently on parole and under house arrest, brings this action pursuant to 42 U.S.C. § 1983 against the Missouri Department of Corrections ("MDOC") Division of Probation and Parole; Kelly Casey (Institutional Parole Officer, MDOC); Leah Borton (Parole Officer, MDOC); Charlie Baker (Lead Parole Analyst, MDOC); and Jennifer Sachse (Warden, Missouri Eastern Correctional Center, MDOC). ECF No. 1. Plaintiff sues all defendants in their individual and official capacities.
Plaintiff states he was incarcerated at Fulton Reception and Diagnostic Center starting on April 13, 2017 after being found guilty by a jury of one count of possession of a controlled substance with intent to distribute in violation of Mo. Rev. Stat. § 195.211 and one count of possession of drug paraphernalia in violation of Mo. Rev. Stat. § 195.233. Plaintiff states he was sentenced to 15 years imprisonment for the possession of a controlled substance with intent to distribute charge and one year on the paraphernalia charge with his sentences to run concurrently. Plaintiff states he was issued three dates which he could possibly be released on parole: November 15, 2018, August 15, 2019, and May 15, 2020. At some point, plaintiff was transferred to the Missouri Eastern Correctional Center ("MECC").
On September 20, 2017, plaintiff states he received a document from MDOC Probation and Parole informing him he would be released on November 15, 2018. On September 29, 2017, plaintiff states he received a document from "records" informing him he would receive a 435-day jail time credit. Based on this credit, plaintiff alleges his release date should have been adjusted to September 6, 2017. Plaintiff alleges he visited with his institutional parole officer, defendant Casey, to inform her that he needed to be released. Defendant Casey told plaintiff she would have to discuss the matter with her supervisor, defendant Borton. Plaintiff states he also discussed the matter with defendant Borton, but she told him she would have to contact Central Offices in Jefferson City, Missouri.
Plaintiff alleges defendant Casey later informed him he was ineligible for parole and would not be released until December 8, 2024. Plaintiff told her she was incorrect because she had referenced the wrong sentencing statute. Defendant Casey allegedly told plaintiff there was nothing she could do and referred him to defendant Borton. Plaintiff states he spoke with defendantBorton who allegedly agreed with plaintiff's assessment of his new parole date but stated she had to contact defendant Baker, Lead Parole Analyst. Plaintiff later received a letter from defendant Baker which informed plaintiff he would not be released until December 8, 2025. Plaintiff states defendant Baker also referenced the wrong sentencing statute in making his determination. Plaintiff alleges he contacted MECC Warden Sachse who "did nothing other than talk with Leah Borton who assured her [plaintiff] would not be getting out until December 8, 2025." Subsequently, Governor "Mike Parsons got involved and granted [plaintiff] a limited commutation of [his] sentence from May 4, 2020 until December 2, 2020 to house arrest."
Plaintiff alleges defendants Casey, Borton, Baker, and Sachse failed to follow "their policy and procedure" and conspired together to keep him "illegally and unconstitutionally" incarcerated. Plaintiff also alleges his due process rights were violated due to their actions. Attached to plaintiff's complaint are fifty-two (52) pages of attachments labeled as evidence and proof of exhaustion of remedies. ECF No. 1-2.
For relief, plaintiff seeks six (6) million dollars in punitive damages.
Having carefully reviewed the complaint, the Court concludes that plaintiff's claims against defendants must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
Plaintiff's claims against the MDOC Division of Probation and Parole is barred by the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 (1978); Jackson v. Missouri Board of Probation and Parole, 306 Fed. Appx. 333 (8th Cir. 2009). A suit against the MDOC is, in effect, a suit against the State of Missouri. The State of Missouri, however, is not a "person" forpurposes of a § 1983 action and is absolutely immune from liability under § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 63 (1989). E.g., Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 948 F.2d 1084, 1086 (8th Cir. 1991) (). As a result, the complaint shall be dismissed as to the MDOC Division of Probation and Parole pursuant to 28 U.S.C. § 1915(e)(2)(B).
Plaintiff's official capacity claims against defendants Casey, Borton, Baker, and Sachse will be dismissed because they are not cognizable under § 1983. Plaintiff alleges these four defendants are employed by the MDOC, a state agency. Naming a government official in his or her official capacity is the equivalent of naming the government entity that employs the official, in this case the State of Missouri. Will, 491 U.S. at 71. See also Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016) (); Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (). "[N]either a State nor its officials acting in their official capacities are 'persons' under § 1983." Id. See also Kruger v. Nebraska, 820 F.3d 295, 301 (8th Cir. 2016) (). See also Yount v. Long, No. 4:07-CV-1657-FRB, 2008 WL 5191467, at *2 (E.D. Mo. Dec. 11, 2008) ().
Moreover, the Eleventh Amendment provides immunity to state officials who are sued in their official capacities. See In re Sdds, 97 F.3d 1030, 1035 (8th Cir. 1996). The Eighth Circuit hasheld that § 1983 does not abrogate the states' Eleventh Amendment immunity. See Williams v. State of Missouri, 973 F.2d 599, 600 (8th Cir. 1992) (); Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012) ().
As a result, the complaint shall be dismissed as to defendants Casey, Borton, Baker, and Sachse in their official capacities pursuant to 28 U.S.C. § 1915(e)(2)(B).
Plaintiff alleges defendants Casey, Borton, Baker, and Sachse violated his due process rights by failing to release him on parole on a specific date. The Court cannot...
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