Edwards v. McSwain et al

Filing 84

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that defendant Michael Whites motion to dismiss is GRANTED. [ECF No. 38 ]IT IS FURTHER ORDERED that defendant Robert Goulds motion for judgment on the pleadings is GRANTED. [ECF No. 57 ]IT IS FURTHER ORDE RED that plaintiffs motion for leave to file his memorandum in opposition to defendant Les Semars motion for judgment on the pleadings is GRANTED. [ECF No. 80 ]. IT IS FURTHER ORDERED that defendant Les Semars motion for judgment on the pleadings is DENIED. [ECF No. 77 ] IT IS FURTHER ORDERED that plaintiffs motion for injunctive relief and emergency hearing of tapes is DENIED. [ECF No. 25 ] IT IS FURTHER ORDERED that plaintiffs motion for preliminary and permanent injunctive relief is DE NIED as moot as plaintiff has entered MOSOP Phase II. [ECF No. 29 ] IT IS FURTHER ORDERED that plaintiffs motion to conduct discovery is DENIED without prejudice to refiling after discovery has commenced. [ECF No. 67 ] IT IS FURTHER ORDERED that p laintiffs motions for subpoenas are DENIED without prejudice to refiling after discovery has commenced. [ECF Nos. 68 , 69 , 70 , and 71 ] An Order of Partial Dismissal and Order of Partial Judgment will accompany this memorandum and order. Signed by District Judge Audrey G. Fleissig on 09/28/2018. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LAWRENCE M. EDWARDS,

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Plaintiff,
v.
ELLIS MCSWAIN, et al.,
Defendants.

No. 4:17-CV-2179-AGF

MEMORANDUM AND ORDER
This matter is before the Court on defendant Michael White’s motion to dismiss and
defendants Robert Gould and Les Semar’s motions for judgment on the pleadings. The motions
are fully briefed and ready for decision. For the following reasons, the Court will grant defendant
White’s motion to dismiss and defendant Gould’s motion for judgment on the pleadings. The
Court will deny defendant Semar’s motion for judgment on the pleadings.
I.

Background

Plaintiff has been incarcerated in the Missouri state prison system since 1995. Because he
is a sex offender, he is required by Missouri statute to participate in the Missouri Sex Offender
Program (“MOSOP”) before he can be eligible for parole or conditional release. Plaintiff had a
good time eligibility (“GTE”) release date of February 23, 2017, and has a conditional release date
(“CRD”) of August 23, 2019. If he were to serve his full sentence, without regard to good time
credits and conditional release, he would not be eligible for release until 2024.
MOSOP is conducted in three phases, all of which need to be completed for eligibility for
early release. According to Missouri Department of Corrections (“MODOC”) policy, an offender

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should typically be placed in MOSOP within fourteen to sixteen months of the “earliest
presumptive release date,” which plaintiff alleges is an offender’s GTE date, not his CRD.
Plaintiff started Phase I of MOSOP on February 11, 2016, and completed it in March 2016.
He alleges he was to begin Phase II within fourteen to sixteen months of his GTE release date of
February 23, 2017. Instead, he states he was retaliated against by FCC and MOSOP officials, and
these officials purposefully miscalculated his entry into Phase II to begin within fourteen to sixteen
months of his CRD on August 23, 2019, which is two and a half years later than his GTE date.
Plaintiff did not start Phase II of MOSOP until January 29, 2018—nearly two years after his
completion of Phase I, and nearly one year after his GTE release date. Because of this retaliation,
plaintiff states that he will be spending an additional two and a half years in prison. He seeks
compensatory damages in the amount of $150,000 and punitive damages in the amount of
$250,000.
II.
A.

Procedural History

Plaintiff’s Prior Missouri State Court Case

This Court is not the first to encounter plaintiff’s issue with MOSOP and his potential early
release date. On June 17, 2016, plaintiff filed a petition in Cole County Circuit Court titled
“Declaratory Judgment & Injunctive Relief.”

See Edwards v. McSwain, et al., Case No.

16-AC-CC00262 (19th Circuit, Cole County) (filed June 17, 2016) (“prior state court case”).
Plaintiff later summarized his thirty-page petition as follows:

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This complaint is being filed against MoSop officials who acted in concert
with Modoc officials to prevent the Petitioner from participating in Phase II, so not
to be considered by Probation & Parole for his Good Time Eligibility Date of
2/23/17, and postponed his participation altogether even though Petitioner had been
placed into Phase I 14-16 months of his earliest possible release date of 2/23/2017
and complete[d] Phase I, sometime around 3/2016. Petitioner was informed by
MoSop officials named in complaint that he now must wait until he is 14-16
months from his Conditional Release Date of 8/23/2019, which is almost 2 ½ years
from now.
...
Respondents [including defendants Michael White and Robert Gould]
knew that Petitioner had been tracked by his GTE date, and had Petitioner had been
tracked by his GTE date, and had Petitioner issued a notice to start Phase I on
February 11, 2016 only to postpone his enrollment in Phase II, to discriminate
against him for exercising his Constitutional rights against Modoc FUM Wendy
Dashner and Modoc—Former Sgt. James Ford’s harassment/retaliation of
Petitioner . . . to effectively “chill” his First Amendment right to seek civil/judicial
redress which upset these Modoc/MOSOP officials, and why the sudden
deactivation and prevention in Phase II . . . .
Pet.’s Opp’n to Defs.’ Mot. to Dismiss at 1-3, Case No. 16AC-CC00262 (Cole Cty. Cir. Ct., filed
Oct. 11, 2016).
The Circuit Court of Cole County granted defendants White and Gould’s motion for
judgment on the pleadings.1 The court found, as a matter of law, that plaintiff had no liberty
interest in completing MOSOP by any certain date. Plaintiff appealed this determination, and the
Missouri Court of Appeals for the Western District of Missouri affirmed.
B.

Plaintiff’s Prior Federal Case

Plaintiff has also brought First Amendment retaliation claims against defendants White,
Gould, and Semar in a prior case in this Court, Edwards v, Villmer, et al., Case No.
4:16-CV-1077-RLW (E.D. Mo. filed June 27, 2016) (“prior federal case”). Plaintiff’s case as to
defendants White, Gould, and Semar was dismissed without prejudice as conclusory on preservice

1

The motion for judgement on the pleadings was filed by defendants Ellis McSwain, Michael
White, and any other MDOC employees named in the petition. Defendant Robert Gould filed a
separate motion for judgment on the pleadings, in which he joined the other defendants.
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initial review under 28 U.S.C. § 1915(e). See id. at ECF No. 9. These defendants were never
served. More than a year later, the Court entered summary judgment in favor of the remaining
defendants, Wendy Dashner and James Ford (correctional officers at Farmington Correctional
Center (“FCC”)), on plaintiff’s claims of First Amendment retaliation.

Plaintiff filed two

extensions of time to file a notice of appeal, but ultimately did not file his notice of appeal.
III.
A.

Legal Standards

Motion to Dismiss

To survive a motion to dismiss under Rule 12(b)(6), “a civil rights complaint must contain
facts which state a claim as a matter of law and must not be conclusory.” Gregory v. Dillards,
Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc) (quotations and citation omitted). “A plaintiff
must assert facts that affirmatively and plausibly suggest that the pleader has the right he claims
rather than facts that are merely consistent with such a right.” Id. (quotations and citation
omitted). “While a plaintiff need not set forth detailed factual allegations or specific facts that
describe the evidence to be presented, the complaint must include sufficient factual allegations to
provide the grounds on which the claim rests.” Id. (quotations and citations omitted).
“The Court may consider the pleadings themselves, materials embraced by the pleadings,
exhibits attached to the pleadings, and matters of public record.” Mills v. City of Grand Forks,
614 F.3d 495, 498 (8th Cir. 2010). “Documents necessarily embraced by the pleadings include
‘documents whose contents are alleged in a complaint and whose authenticity no party questions,
but which are not physically attached to the pleading.’” Ashanti v. City of Golden Valley, 666
F.3d 1148, 1151 (8th Cir. 2012) (quoting Kushner v. Beverly Enters., Inc., 317 F.3d 820, 831 (8th
Cir. 2003)).2

2

Here, plaintiff has attached to his amended complaint fifty-five pages of documents, including
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B.

Motion for Judgment on the Pleadings

A motion for judgment on the pleadings is treated under the same legal standard as a
motion to dismiss for failure to state a claim under Rule 12(b)(6). See Clemons v. Crawford, 585
F.3d 1119, 1124 (8th Cir. 2009).

“Well-pleaded facts, not legal theories or conclusions,

determine [the] adequacy of [t]he complaint.” Id. (quoting Mattes v. ABC Plastics, Inc., 323 F.3d
695, 698 (8th Cir. 2003)).
IV.

Discussion

In their motion to dismiss and motions for judgment on the pleadings, defendants argue
that plaintiff’s allegations have been previously adjudicated in his prior state court and federal
cases, and therefore this second federal case is barred by the doctrine of res judicata. Even if res
judicata does not bar this action, defendants state that plaintiff cannot make out a prima facie case
of First Amendment retaliation, and his case should be dismissed.
A.

Res Judicata

The Eighth Circuit has discussed the intersectionality of issue preclusion and claim
preclusion.

“Res judicata incorporates the concepts of both issue preclusion and claim

preclusion. Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a
matter that has been litigated and decided.” Sandy Lake Band of Miss. Chippewa v. United States,
714 F.3d 1098, 1102 (8th Cir. 2013) (internal citations and quotations omitted). Issue preclusion
has five elements:

seven prison grievances and documents related to these grievances. In addition, the Court has
considered the public record of plaintiff’s state court case, Edwards v. McSwain, et al., Case No.
16-AC-CC00262 (19th Cir., Cole Cty.) (filed June 17, 2016), accessed through the Missouri State
Courts docketing system, Missouri Case.net. The Court has also considered the public record of
plaintiff’s prior federal case, Edwards v. Villmer, et al., Case No. 4:16-CV-1077-RLW (E.D. Mo.,
filed June 27, 2016).
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(1)

the party sought to be precluded in the second suit must have been a party,
or in privity with a party, to the original lawsuit;

(2)

the issue sought to be precluded must be the same as the issue involved in
the prior action;

(3)

the issue sought to be precluded must have been actually litigated in the
prior action;

(4)

the issue sought to be precluded must have been determined by a valid and
final judgment; and

(5)

the determination in the prior action must have been essential to the prior
judgment.

Id. at 1102-1103.
The burden of persuasion to establish these elements is on the party seeking preclusion.
See 18 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE 3d § 132.03[2][g] (3d ed. 2018)
(“MOORE’S FEDERAL PRACTICE”). If there is ambiguity and a court cannot ascertain what was
litigated and decided, issue preclusion cannot operate. Id.
Defendants White and Gould point to the prior state court case as having res judicata effect,
precluding this federal case. Defendant Semar, however, who was not a party to the state court
case, points to plaintiff’s prior federal case as having res judicata effect, precluding this second
federal case. The Court will address the five elements of issue preclusion as to defendants White
and Gould separate from defendant Semar.
1.

Defendants Michael White And Robert Gould
a.

Parties Sought To Be Precluded in Second Suit Must Have Been
Party to Original Suit

There is no disagreement that defendants White and Gould were involved in plaintiff’s
prior state court case. The question is whether the issues litigated and decided in the state court
case are the same as the issues presented in this case.

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b.

Issue Precluded Must Be the Same as the Issue Involved in Prior
Action

Edwards raised the same issues in all three suits. In his prior state court case, his prior
federal case, and here, plaintiff alleges that in retaliation for his filing IRRs and grievances against
FCC and MOSOP officials, defendants prevented his timely entry into MOSOP Phase I, and his
timely continuation into MOSOP Phases II and III.
All plaintiff’s cases have been filed pro se, and he has not set out his claim of retaliation as
a separate cause of action as counsel might. The substance of all three filings, however, clearly
states allegations of retaliation for filing grievances against FCC and MOSOP officials. See
Edwards v. McSwain, No. 16AC-CC00262, Pet. (Cole Cty. Cir. Ct. filed Jun. 17, 2016) (petition
“based on . . . failure to intervene on MOSOP officials decision-making authority to intentionally
and maliciously with culpable state of mind, bent on retaliation, to prevent petitioner from
completing Phase II MOSOP, and being considered for ‘Good-Time’ notice”); Edwards v.
Villmer, No. 4:16-CV-1077-RLW, Compl. (E.D. Mo. filed Aug. 18, 2016) (“The Amended
Complaint alleges that Plaintiff was falsely/unlawfully classified as an Alpha (aggressive,
predatory, and intimidating), retaliation being the actual motivating factor, for false conduct
violations, and unlawful detainments and prevented placement in MOSOP, and after filing
grievances.”)
c.

Issue Must Have Been Actually Litigated in the Prior Action3

Plaintiff litigated in his state court case the violation of his First Amendment rights to be
free of retaliation, both in the trial court and in the appellate court. Plaintiff’s pro se petition in

3

Under this criteria, this case presents the unique situation of an issue that was litigated in the prior
cases, but was not decided in the prior cases. For now, the Court will address whether plaintiff
litigated the issue in his prior cases, and will discuss in criteria five (see infra, Part III.A.1.e)
whether the prior courts decided the issue.
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state court alleged retaliation throughout, starting in the first paragraph of his petition. See
Edwards v. McSwain, No. 16AC-CC00262, Pet. (Cole Cty. Cir. Ct. filed Jun. 17, 2016)
(“[defendants] intentionally and maliciously with culpable state of mind, bent on retaliation to
prevent Petitioner from completing Phase II MOSOP . . . violated his protected liberty interest”).
On appeal, Edwards seems to raise his First Amendment retaliation claim in Point I of his
six-point appellate brief:
POINTS RELIED ON I
THE TRIAL JUDGE ERRED IN ENTERING THE JUDGMENT IN
FAVOR OF RESPONDENTS . . . BECAUSE TRIAL JUDGE FAILED TO
DRAW UP INTERNAL GRIEVANCES AGAINST MOSOP OFFICIALS IN
THAT PLAINTIFF HAD THE RIGHT UNDER HIS FIRST AMENDMENT
TO PETITION FOR REDRESS FOR WHICH RETALIATORY CONDUCT
DOES NOT ITSELF RISE TO THE LEVEL OF A CONSTITUTIONAL
VIOLATION.

Edwards v. McSwain, et al., No. WD80305, Appellant’s Br. On Appeal (Mo. Ct. App. filed Mar.
10, 2017).
d.

Valid and Final Judgment

The state court entered a valid and final judgment on the parties’ motion for judgment on
the pleadings. Plaintiff appealed the judgment, and the appellate court also issued a valid and
final judgment.
e.

Determination in Prior Action Must Have Been Essential to the
Prior Judgment4

4

“In discovering what issues were determined by the judgment in a prior action, the court in the
second action is free to go beyond the judgment roll, and may examine the pleadings and the
evidence in the prior action.” MOORE’S FEDERAL PRACTICE 3d § 132.03[4][i].
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Defendants’ motion to dismiss this federal case based on the res judicata effect of
plaintiff’s prior state court case fails on element five—whether the determination in the state court
case was essential to the state court judgment.
The doctrine of issue preclusion treats as final only those questions actually and necessarily
decided in a prior suit. MOORE’S FEDERAL PRACTICE 3d § 132.03[3][a]. “In order for a
determination of fact subsumed in an earlier judgment to be preclusive in a later action, the
determination of that issue must have been actually decided, that is, distinctly put in issue and
directly determined.” Id. “The determination of an issue in the prior action is given preclusive
effect only with regard to those matters in issue or points controverted, and only if the finding or
verdict rests on the determination.” Id.
The state trial court did not address plaintiff’s retaliation claim in its Memorandum, Order,
and Judgement dated December 6, 2016. The trial court based its ruling entirely on the fact that
plaintiff had no liberty interest in early release from prison, and no liberty interest in being
scheduled to complete MOSOP by a particular date. “As a result, even if Missouri prison officials
have delayed Edwards’s participation in the MOSOP, that delay is not an atypical and significant
deprivation that would implicate Edwards’s due process rights. Therefore . . . there is no legal
theory under which Edwards could prevail.” Edwards v. McSwain, Case No. 16AC-CC00262,
Mem., Order, and J. (Cole Cty. Cir. Ct. filed Dec. 6, 2016).
For its part, the Missouri Court of Appeals found plaintiff’s Point I “indecipherable.”
Plaintiff’s Point I was that the trial court erred in entering judgment in favor of defendants because
the “trial judge failed to draw upon internal grievances against MOSOP officials in that plaintiff
had the right under his First Amendment to petition for redress for which retaliatory conduct does
not itself rise to the level of a constitutional violation.” In the same paragraph, however, the

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appellate court stated “insofar as Edwards is attempting to argue a violation of a civil right on
appeal, such a claim is properly brought in an action under 42 U.S.C. § 1983.” Edwards v.
McSwain, No. WD80305, Mem. Suppl. Order Affirming J. Pursuant to R. 84.16(b) (Mo. Ct. App.
filed Jun. 27, 2017).
So, while the issue was litigated by plaintiff in the state court case, and not waived, it was
not decided. The final word on this issue came from the appellate court, stating that the issue
would be properly brought in a § 1983 case. Because the Court cannot find that the state court’s
prior judgment determined the issue of whether defendants retaliated against plaintiff for filing
grievances, the Court cannot give the state court’s judgment final preclusive effect foreclosing
litigation of the matter in this federal court. The Court will deny defendants White and Gould’s
motion to dismiss on this point.
2.

Defendant Les Semar
(a)

The Parties to the Two Cases Must Be Same

Defendant Semar relies on plaintiff’s prior federal case, to which he was a party, for his
claim of res judicata. There is no dispute that defendant Semar was a party to the prior federal
case, but his claim of res judicata encounters a problem at element four, whether the prior case
ended in a valid and final judgment.
(b)

Valid and Final Judgment

In plaintiff’s prior federal case, defendant Semar was dismissed without prejudice on
preservice initial review under 28 U.S.C. § 1915(e). This dismissal without prejudice is generally
not considered an adjudication on the merits, and therefore, is not entitled to issue preclusive
effect. See MOORE’S FEDERAL PRACTICE, § 132.03[2][l]. Because defendant Semar cannot

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establish that plaintiff’s prior federal case ended in a valid and final judgment against Semar, the
Court will deny his motion for judgment on the pleadings on the issue of res judicata.
B.

First Amendment Retaliation

Defendants assert that even if plaintiff’s First Amendment retaliation claims are not subject
to res judicata effect, they should be dismissed because plaintiff cannot establish a prima facie
case. The Court agrees with defendants White and Gould that plaintiff has failed to state a
plausible claim of First Amendment retaliation against them. As to defendant Semar, however,
the Court, construing plaintiff’s amended complaint liberally, finds plaintiff has stated a plausible
claim of First Amendment retaliation.
“The right to be free from retaliation for availing one’s self of the prison grievance process
has been clearly established in this circuit for more than twenty years.” Santiago v. Blair, 707
F.3d 984, 992 (8th Cir. 2013). To state a prima facie case for First Amendment retaliation,
plaintiff must allege that (1) he engaged in protected activity; (2) that defendants, to retaliate for
the protected activity, took adverse action against plaintiff that would chill a person of ordinary
firmness from engaging in that activity; and (3) that the adverse action was motivated at least in
part by the exercise of the protected activity. See Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir.
2004), cert. denied, 546 U.S. 860 (2005).
1.

The Protected Activity

Based on plaintiff’s amended complaint, he states he was retaliated against by defendant
FCC and MOSOP officials “after he filed several grievances against them.” Am. Compl. ¶ VI.2.5

5

In his state court case, plaintiff alleged specifically that his protected activity was notifying
Missouri State Senator Jamilah Nasheed’s office of an incident in which “Sergeant Ford
handcuffed, maced and applied an illegal chokehold on causing [an offender] to go into cardiac
arrest.” Edwards v. McSwain, No. 16AC-CC00262, Pet. (Cole Cty. Cir. Ct., filed Jun. 17, 2016).
He states that Sergeant Ford had “strong ties” with defendant Semar, “who personally told me that
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Plaintiff has filed at least seven grievances concerning the issues alleged in the complaint, and he
attaches these grievances to his complaint: FCC 15-952 (filed Aug. 21, 2015); FCC 15-996 (filed
Aug. 26, 2015); FCC 16-480 (filed May 16, 2016); FCC 16-967 (filed May 20, 2016); FCC 16-721
(filed Jul. 25, 2016); ERDC 16-738 (filed Jun. 14, 2016); and FCC 17-44 (filed Jan. 17, 2017).6
Although these grievances could be the protected activity for which he was retaliated against, the
grievances themselves complain about the alleged retaliatory activity—i.e., plaintiff’s failure to be
placed in, or continue in, MOSOP.
Prior to the filing of this action, plaintiff engaged in a separate investigation into
allegations of harassment and unlawful force used by Sergeant Ford at FCC against
African-American offenders. In one of his grievances, FCC-16-480, plaintiff alleges he was
retaliated against because he angered FCC officers, including defendant Semar, by contacting
State Senator Jamilah Nasheed’s office and “giving her signature affidavits from other
African-American offenders, related to having been issued bogus CDVs, threated and assaulted by
Sgt. James Ford, to prove a pattern of civil rights violations, which had him re-investigated and
forced into early retirement.” It is this alleged retaliation that plaintiff complained of in his state
court case.
Plaintiff also alleges in his amended complaint that he was retaliated against by defendant
Semar because plaintiff attempted to transfer out of FCC. On August 20, 2015, plaintiff filed
grievance FCC 15-952 against defendant Semar, stating “Semar [told plaintiff] he should sign
[protective custody] waiver and be able to take MOSOP here, instead of transferring or else it’ll

MOSOP Director [defendant] Gould was a close friend of his, and if transferred elsewhere he
could guarantee that Petitioner would not be placed in MOSOP Phase I and II.” Id.
6

Plaintiff filed nineteen grievances at FCC between June 2014 and September 2015; plaintiff filed
eight grievances at ERDCC between December 2015 and September 2016. See ECF No. 53-1.
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count as failure to do MOSOP.” On August 26, 2015, plaintiff filed grievance FCC 15-996
against FCC and MOSOP officials. Grievance FCC 15-996 states that plaintiff “felt coerced, lied
to and threatened with loss of MOSOP if I accepted a transfer offered me by central office but told
I’d be maxed out until 2024.”
Plaintiff had attempted to transfer out of FCC because he cooperated in the Cape Girardeau
Police Department’s investigation of another FCC inmate, Terrance Vance, for the alleged murder
of plaintiff’s son. Plaintiff states that word of his cooperation spread through FCC, and other
inmates were threatening his life. He requested to transfer out of FCC for his safety. In his
complaint, plaintiff states that “FUM Semar called plaintiff to [housing unit] 2 pod, told him that
he is MOSOP required for Oct/Nov 2015, and if he attempts to transfer he would contact his best
friend MOSOP Director Robert Gould and make sure plaintiff serve his maximum sentence of
2024.” Am. Compl. § VI.3.
He also alleges Semar retaliated against plaintiff for filing grievances against Semar’s
coworkers, although plaintiff does not specify which grievances or which coworkers: “FUM
Semar threatened plaintiff by telling him it would be in his best interest to dismiss the IRRs he had
pending against his two co-workers, and would give plaintiff until that afternoon to rethink his
decision.” Id. at § VI.4. The Court cannot determine, after much review, which IRRs plaintiff
had pending against Semar’s two co-workers at this time, and cannot determine the two
co-workers to which plaintiff refers.
Then on October 1, 2015, plaintiff states defendants Gould and White “made their first
attempt to terminate plaintiff from MOSOP by issuing him MOSOP notification [stating he was to

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begin MOSOP Phase 1 at FCC on October 1, 2015] fully informed about [plaintiff’s] transfer
status.”7 Id. at § VI.11; Ex. N.
Based on a thorough review of plaintiff’s amended complaint and the attached
documentation, plaintiff has engaged in the near-constant filing of IRRs related to his placement
in, or his continuation in, the MOSOP program. Prior to this, plaintiff had been involved in
grievances related to Sgt. Ford and his treatment of African-American inmates. Additionally,
plaintiff has participated in the criminal investigation into another offender, Mr. Vance, and
requested to transfer out of FCC for his safety. Plaintiff alleges he was threatened by Semar with
loss of his MOSOP eligibility in retaliation for: (1) filing IRRs against Semar; (2) filing IRRs
against two of Semar’s coworkers; (3) notifying State Senator Nasheed of issues between Sgt.
Ford and African-American inmates, which began an investigation that led to Sgt. Ford’s early
retirement; and (4) requesting transfer out of FCC for his safety.
2.

The Adverse Action
(a)

Plaintiff’s Prison Transfer and Entry Into MOSOP Phase I

Plaintiff complaint is difficult to follow, and not logically consistent, but it seems that on
September 22, 2015, plaintiff was pending transfer from FCC because of safety concerns, namely
safety concerns posed with respect to offender Vance. He alleges that on September 24, 2015,
defendants Gould and White tried “to terminate plaintiff from the MOSOP program” by issuing
him a notification that he was to begin MOSOP Phase I on October 1, 2015 at FCC. Plaintiff
alleges defendants White and Gould issued this notification knowing that plaintiff had requested a
transfer to different facility. The beginning date for MOSOP Phase I issued by defendant White

7

The MOSOP notification was signed by defendant White on September 24, 2015, and notifies
plaintiff he is to begin MOSOP Phase 1 at FCC on October 1, 2015. ECF No. 8-1 at 18.
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and Gould would have placed plaintiff on track for entering MOSOP Phase I within fourteen to
sixteen months of his GTE date, as plaintiff alleges was appropriate.
Plaintiff’s attorney contacted the MODOC, and the “MOSOP termination attempt was
cancelled” and on October 13, 2015, plaintiff was transferred to Moberly Correctional Center
(“MCC”). MCC did not offer MOSOP, and on October 13, 2015, MCC staff immediately
submitted plaintiff for transfer to Eastern Reception, Diagnostic and Correctional Center
(“ERDCC”). Plaintiff’s transfer to ERDCC occurred on December 8, 2015. Plaintiff began
MOSOP Phase I at ERDCC on February 11, 2016.
As set forth in Revels, a prisoner must demonstrate not only that the prison officials took an
adverse action, but that the action “would chill a person of ordinary firmness from continuing in
the [protected] activity.” 382 F.3d at 876. Plaintiff alleges he was transferred prisons at his
request, and his start date for MOSOP Phase I was delayed until he could be placed in a suitable
prison with a MOSOP program. He claims this was in retaliation for filing grievances against
defendant Semar and his coworkers. Being transferred prisons, at the prisoner’s request, for
safety considerations is not an adverse action. The transfer from FCC to MCC to ERDCC took
approximately two months, which alone would not have caused plaintiff to be tracked off his GTE
release date of February 23, 2017. Therefore, the Court cannot find that this alleged adverse
action, allegedly caused by defendants White and Gould, would have chilled a person of ordinary
firmness from continuing to engage in any protected activity. The Court finds that no reasonable
jury could conclude that defendants White and Gould retaliated against plaintiff by notifying him
of his start date for MOSOP Phase I at FCC, while plaintiff was pending transfer. For this reason,
the Court will grant defendant White’s motion to dismiss and defendant Gould’s motion for
judgment on the pleadings.

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(b)

Delayed Entry Into MOSOP Phase II and Loss of GTE Release Date

Plaintiff also alleges that after his completion of MOSOP Phase I in March 2016, he was
not immediately enrolled in MOSOP Phase II. Plaintiff’s therapist, Mr. Roberton, had told
plaintiff that he would start Phase II in March or April 2016. (Am. Compl. ¶ 17.) Instead,
plaintiff had to wait nearly two years—until January 29, 2018—to begin Phase II. Because of
plaintiff’s delayed entry into MOSOP Phase II, plaintiff lost his GTE release date of February 23,
2017.
Plaintiff alleges this was in retaliation, again, for grievances filed against defendant Semar
and his coworkers. “Plaintiff realizes that FUM Semar’s threat to have MOSOP Director Gould
to make plaintiff serve his maximum sentence of 2024 is actually being carried out since his
2-23-2017 GTE been took [sic].” (Am. Compl. ¶ 27.) The Court finds that plaintiff’s alleged
delay of nearly two years before his entry into MOSOP Phase II, and the accompanying loss of his
GTE release date, could constitute an adverse action that would chill a person of ordinary firmness
from filing grievances. The Court finds this allegation of adverse action, taken against plaintiff
by defendant Semar, sufficient to state a plausible claim of retaliation for engaging in protected
speech.
The Court is not persuaded by defendant Semar’s argument that this action is barred by
Heck v. Humphrey, 512 U.S. 477 (1994). A judgment in this action would not necessarily imply
the invalidity of plaintiff’s criminal conviction, continued imprisonment, or sentence. Here,
plaintiff is seeking damages for violations of his First Amendment right to file grievances. This
question of First Amendment retaliation is analytically distinct from the question of whether
plaintiff violated the law in his criminal case.
3.

Causation

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Finally, plaintiff must allege a sufficient causal connection between his use of the
grievance process and defendants’ allegedly retaliatory actions. To satisfy the causal connection
prong, “the plaintiff must show the official took the adverse action because the plaintiff engaged in
the protected speech.” Revels, 382 F.3d at 876. “The causal connection is generally a jury
question, but it can provide a basis for summary judgment when the ‘question is so free from doubt
as to justify taking it from the jury.’” Id. (quoting Naucke v. City of Park Hills, 284 F.3d 923,
927-28 (8th Cir. 2002)).
At this stage in the proceeding, where plaintiff’s factual allegations are entitled to the
assumption of truth and all reasonable inferences are drawn in his favor, the Court finds plaintiff
has stated sufficient factual matter against defendant Semar to state a claim to relief that is
plausible on its fact. Based on plaintiff’s allegations, he was threatened by defendant Semar that
if plaintiff did not withdraw his grievances against Semar’s coworkers, plaintiff would serve his
entire sentence. Plaintiff has established that his entry into MOSOP Phase II was delayed by
nearly two years, and claims that this resulted in the loss of his GTE release date. Plaintiff’s
pleaded factual content allows the Court to draw the reasonable inference that the delay in entry
into MOSOP Phase II was caused by defendant Semar’s retaliation for plaintiff’s filing grievances.
Plaintiff’s legal conclusions are supported by well-pleaded factual allegations, and the Court finds
plaintiff’s amended complaint plausibly gives rise to an entitlement to relief against Semar.
C.

Qualified Immunity

In his motion for judgment on the pleadings, defendant Semar claims he is entitled to
qualified immunity. Qualified immunity protects government officials from liability under 42
U.S.C. § 1983, but not if their conduct “violated clearly established statutory or constitutional
rights of which a reasonable person would have known.” Nelson v. Corr. Med. Servs., 583 F.3d

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522, 527 (8th Cir. 2009) (en banc) (quotation omitted); see Maness v. Dist. Court, 495 F.3d 943,
944 (8th Cir. 2007) (analyzing qualified immunity on 28 U.S.C. § 1915(e)(2)(B) review). The
tests for whether an officer is entitled to qualified immunity are: (1) whether the facts alleged,
taken in the light most favorable to the injured party, show that the officer’s conduct violated a
constitutional right; and (2) whether the constitutional right was clearly established at the time of
the deprivation so that a reasonable officer would understand his conduct was unlawful. Pearson
v. Callahan, 555 U.S. 223, 231 (2009).
The Court finds that the facts alleged, viewed in the light most favorable to plaintiff, show
that defendant Semar retaliated against plaintiff for exercising his First Amendment right to file
grievances against Semar and other officials at FCC.

Plaintiff’s right to be free of First

Amendment retaliation was clearly established at the time and a reasonable officer would have
understood defendant’s conduct was unlawful. Based on the allegations of the complaint, the
Court will deny defendant Semar’s motion to dismiss on qualified immunity grounds. If, after
discovery, defendant seeks to renew his qualified immunity argument, the Court will address the
issue on summary judgment.
Accordingly,
IT IS HEREBY ORDERED that defendant Michael White’s motion to dismiss is
GRANTED. [ECF No. 38]
IT IS FURTHER ORDERED that defendant Robert Gould’s motion for judgment on the
pleadings is GRANTED. [ECF No. 57]
IT IS FURTHER ORDERED that plaintiff’s motion for leave to file his memorandum in
opposition to defendant Les Semar’s motion for judgment on the pleadings is GRANTED. [ECF
No. 80]

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IT IS FURTHER ORDERED that defendant Les Semar’s motion for judgment on the
pleadings is DENIED. [ECF No. 77]
IT IS FURTHER ORDERED that plaintiff’s motion for injunctive relief and emergency
hearing of tapes is DENIED. [ECF No. 25]
IT IS FURTHER ORDERED that plaintiff’s motion for preliminary and permanent
injunctive relief is DENIED as moot as plaintiff has entered MOSOP Phase II. [ECF No. 29]
IT IS FURTHER ORDERED that plaintiff’s motion to conduct discovery is DENIED
without prejudice to refiling after discovery has commenced. [ECF No. 67]
IT IS FURTHER ORDERED that plaintiff’s motions for subpoenas are DENIED
without prejudice to refiling after discovery has commenced. [ECF Nos. 68, 69, 70, and 71]
An Order of Partial Dismissal and Order of Partial Judgment will accompany this
memorandum and order.
The Court is also entering a separate case management order today.
Dated this 28th day of September, 2018.

_________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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