Parks v. Marcus et al

Filing 14

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis (Docket No. 9 ) is GRANTED. IT IS FURTHER ORDERED that plaintiff's later-filed, duplicative motion for leave to proceed in forma pauperis (Docket No. 12 ) is DENIED as moot. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $13.59 within twenty-one (21) days of the date of this Order. Plaintiff is instructed to make his remittance payable t o Clerk, United States District Court, and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) the statement that the remittance is for an original proceeding. IT IS FURTHER ORDERED that this case is DISMISSED. A separate order of dismissal will be filed herewith. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge E. Richard Webber on 7/5/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KYLE MAURICE PARKS,

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Plaintiff,
v.
HOWARD MARCUS, et al.,
Defendants.

No. 4:17-cv-1286-NCC

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Kyle Maurice Parks, a federal
prisoner, for leave to commence this civil action without prepayment of the filing fee (Docket
No. 12). The motion will be granted, and this case will be dismissed pursuant to 28 U.S.C. §
1915(e).
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis
is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his
prison account to pay the entire fee, the Court must assess and, when funds exist, collect an
initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the
prisoner’s account, or (2) the average monthly balance in the prisoner’s account for the prior sixmonth period. After payment of the initial partial filing fee, the prisoner is required to make
monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s
account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these
monthly payments to the Clerk of Court each time the amount in the prisoner’s account exceeds
$10.00, until the filing fee is fully paid. Id.

In support of the instant motion, plaintiff submitted an affidavit and an inmate account
statement showing an average monthly balance of $67.96. The Court will therefore assess an
initial partial filing fee of $13.59, twenty percent of plaintiff’s average monthly balance.
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, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief under § 1983, 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, inter alia, draw upon judicial
experience and common sense. Id. at 679.
When 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). However, this does not
mean that pro se complaints may be merely conclusory. 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)
(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
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civil litigation must be interpreted so as to excuse mistakes by those who proceed without
counsel. See McNeil v. U.S., 508 U.S. 106, 113 (1993).
Background
The following background provides necessary context for the case at bar. In December
of 2015, plaintiff was indicted in this Court on a charge of knowingly transporting a minor in
interstate commerce with the intent that the minor engage in prostitution, and in August of 2016,
a Superseding Indictment was returned that expanded the nature and number of the charges. See
United States v. Parks, 4:15-cr-553-JAR-1 (E.D. Mo. Apr. 19, 2017).1 Assistant United States
Attorney Howard Marcus, a named defendant in the case at bar, represented the government
during plaintiff’s criminal prosecution. During the pretrial proceedings, plaintiff was detained in
the Ste. Genevieve Detention Center (“SGDC”). On January 12, 2017, following a jury trial,
plaintiff was found guilty of one count of transportation of a minor to engage in a commercial
sex act, in violation of 18 U.S.C. §§ 1591(a)(1), 1591(b)(2); two counts of attempted
transportation of a minor to engage in a commercial sex act, in violation of 18 U.S.C. §§
1591(a)(1), 1591(b)(2); and six counts of transportation with intent to engage in prostitution, in
violation of 18 U.S.C. § 2421(a). On April 19, 2017, plaintiff was sentenced to a total term of
300 months’ imprisonment, and committed to the custody of the Bureau of Prisons. Id.
In the case at bar, plaintiff filed a complaint on April 7, 2017, but neither paid the filing
fee nor sought leave to proceed in forma pauperis. This Court ordered him to do one or the

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This Court takes judicial notice of this record. See Cravens v. Smith, 610 F.3d 1019, 1029 (quoting In re
Papatones, 143 F.3d 623, 624 n. 3 (1st Cir. 1998) (“The court may take judicial notice of its own orders and of
records in a case before the court.”)); United States v. Morris, 451 F.2d 969, 972 (8th Cir. 1971) (The district court
may take judicial notice of its own records).

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other, and he timely complied. Subsequently, on April 25, 2017, plaintiff filed an amended
complaint, which the Court now reviews pursuant to 28 U.S.C. § 1915(e).
The Amended Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. However, because defendants
Marcus and Deputy United States Marshal Marten are federal employees, plaintiff’s claims
against them for civil rights violations are most properly brought under Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the “federal analog to
suits brought against state officials under” § 1983. Hartman v. Moore, 547 U.S. 250, 254 n. 2
(2006). A Bivens claim involves the same analysis as one arising under 42 U.S.C. § 1983.
Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999).
Plaintiff alleges that his civil rights were violated when the defendants caused him to be
placed in some form of segregation within SGDC, which plaintiff terms “confinement,” and
denied him due process. According to plaintiff’s notations next to each defendant’s name in the
caption of the amended complaint, he sues Marcus in his individual capacity, and he sues Marten
and Patricia Karol (an employee of the SGDC) in both their official and individual capacities.
Specifically, plaintiff alleges as follows:
1.
Sgt. Patricia Karol sent A.U.S.A. Howard Marcus a copy of a conversation
I had with my son on the date of 09-13-2016 asking him to see if two females
associated with my case were going to come and testify.
2.
After A.U.S.A. Howard Marcus received this information, believing I was
trying to stop the females from coming to court, he notified United States Marshal
Ryan Marten that I was under investigation.
3.
Ryan Marten then contacted Sgt. Karol at Ste. Genevieve Detention
Center and ordered I be placed in confinement. I have not received a hearing,
discipline report, cause of confinement review, due process, etc. . . . I was
confined from Oct. 3, 2016 – Feb. 16, 2016, released and then placed back in
confinement after Sgt. Patricia Karol opened my outgoing mail, made a copy of a
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letter to my daughter and sent the copy to A.U.S.A. Howard Marcus. On March
13, 2017 I was returned to confinement and as of the writing of this complaint
have not received a hearing 4-7-2017.
(Docket No. 8 at 5). Plaintiff does not name the person or persons who were directly responsible
for placing him in confinement or denying him review. As relief, plaintiff seeks release from
confinement and “no further harassment or confinement without due process.” (Id. at 6) He also
seeks “$200.00 for every day of confinement for the first act $5000.00 punitive, $300.00 for
every day confinement second act, $7500 punitive.” (Id.)
Discussion
As an initial matter, the Court concludes that any claim for injunctive relief is now moot
because plaintiff is no longer incarcerated at the SGDC. See Pratt v. Corr. Corp. of Am., 267
Fed. Appx. 482, 482 (8th Cir. 2008) (holding that a state inmate’s claim for injunctive relief was
moot upon his transfer to federal custody); Randolph v. Rodgers, 253 F.3d 342, 345-46 (8th Cir.
2001) (denying a prisoner’s requested prospective injunctive relief as to employees of a
correctional facility at which the prisoner was no longer incarcerated, because those employees
had no authority to enact any granted injunctive relief at the prisoner’s present facility).
To the extent plaintiff seeks to sue Marten, an employee of the United States Department
of Justice, in his official capacity, such claims fail. A Bivens action cannot be brought against
the United States, its agencies, or its government officials who are sued in their official
capacities. F.D.I.C. v. Meyer, 510 U.S. 471, 484-86 (1994); see also Patel v. U.S. Bureau of
Prisons, 515 F.3d 807, 812 (8th Cir. 2008) (“Bivens allows for a cause of action for damages
against federal officials, not federal agencies, for certain constitutional violations”); Buford v.
Runyon, 160 F.3d 1199, 1203 (8th Cir. 1998) (complaint against a government official in his

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official capacity is a suit against the United States, and sovereign immunity precludes
prosecution of a Bivens action against the United States).
To the extent plaintiff sues Karol in her official capacity, such claims fail. Naming a
government official in her official capacity is the equivalent of naming the government entity
that employs her. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). To state a
claim against a municipality or a government official in her official capacity, plaintiff must
allege that a policy or custom of the government entity is responsible for the alleged
constitutional violation. Monell v. Dept. of Social Services of City of New York, 436 U.S. 658,
690-91 (1978). The amended complaint contains no allegations that a policy or custom of a
government entity was responsible for the alleged violations of plaintiff’s constitutional rights.
Therefore, as to plaintiff’s claims against Karol in her official capacity, the amended complaint is
legally frivolous and fails to state a claim upon which relief can be granted.
To the extent plaintiff sues Marcus, Marten and Karol in their individual capacities for
monetary damages, the amended complaint fails to state a claim upon which relief may be
granted under § 1983 or Bivens. Plaintiff does not allege that any named defendant was directly
responsible for placing him in any form of segregation within the SGDC, or for denying him
review. Instead, plaintiff alleges only that each defendant shared some form of information that
caused someone else to place him in confinement, and to deny him review of that decision.
These allegations of indirect involvement in allegedly unconstitutional conduct are not
cognizable in these proceedings because liability under § 1983 and Bivens requires a causal link
to, and direct responsibility for, the alleged deprivation of rights.” See Madewell v. Roberts, 909
F.2d 1203, 1208 (8th Cir. 1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985)
(claim not cognizable under § 1983 where plaintiff fails to allege defendant was personally
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involved in or directly responsible for incidents that injured plaintiff); Boyd v. Knox, 47 F.3d
966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in § 1983 suits). While
plaintiff alleges that Marten contacted Karol and ordered him placed in confinement, Marten is a
Deputy United States Marshal, not a SGDC employee or SGDC official with the authority to
either place plaintiff in any form of segregation within SGDC, or grant or deny him any form of
review. Allegations that plaintiff was placed in confinement without review by an unnamed
person or persons following Marten’s contact does not state a Bivens claim against Marten. See
Ziglar v. Abbasi, --- S.Ct. ---, 2017 WL 2621317 (Jun. 19, 2017) (a Bivens claim can be brought
against an individual officer only for his own acts, not for the acts of others).
As an additional matter, the amended complaint contains no allegations of an express
intent to punish, as would be required to state a claim for unconstitutional placement in some
form of segregation during the time plaintiff was a pretrial detainee. See Bell v. Wolfish, 441
U.S. 520, 535, 538 (1979) (Absent a showing of express intent to punish, a particular condition
of confinement is not punishment if it is rationally related to a legitimate government objective).
Furthermore, the allegations in the amended complaint tend to show that the first instance of
plaintiff’s placement in confinement was rationally related to the legitimate government
objective of preventing witness tampering. Regarding the time after plaintiff was adjudicated
guilty, the amended complaint fails to state a claim for unconstitutional placement in some form
of segregation because it fails to allege there was a difference between his new conditions in
confinement and the conditions in the general population which amounted to an atypical and
significant hardship. See Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003); see also Sandin v.
Conner, 515 U.S. 472 (1995) (for the Due Process Clause to be implicated, an inmate subjected

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to segregation must have been subjected to “atypical and significant hardship . . . in relation to
the ordinary incidents of prison life.”)
After carefully reading the amended complaint and giving it the benefit of a liberal
construction, the Court concludes the claims plaintiff wishes to bring are not cognizable under
Bivens or § 1983. It is obvious plaintiff very carefully and thoughtfully prepared the amended
complaint. He sets forth his allegations against each defendant in a logical manner, and he is
very clear about the specific claims he wishes to bring against each defendant. It is therefore
apparent that the problems with the amended complaint would not be cured by permitting
plaintiff to file a second amended pleading. The amended complaint will therefore be dismissed.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
(Docket No. 9) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s later-filed, duplicative motion for leave to
proceed in forma pauperis (Docket No. 12) is DENIED as moot.
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $13.59
within twenty-one (21) days of the date of this Order. Plaintiff is instructed to make his
remittance payable to “Clerk, United States District Court,” and to include upon it: (1) his name;
(2) his prison registration number; (3) the case number; and (4) the statement that the remittance
is for an original proceeding.

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IT IS FURTHER ORDERED that this case is DISMISSED. A separate order of
dismissal will be filed herewith.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this 5th day of July, 2017.

E. RICHARD WEBBER
UNITED STATES DISTRICT JUDGE

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