Bledsoe v. Missouri Department of Corrections et al

Filing 19

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Clerk of Court shall issue process or cause process to issue upon the complaint, pursuant to the service agreement the Court maintains with the Missouri Attorney General's Office, as to defenda nts Robert Killian, Steven Pfister, E. Gould, and Christine Dicus in their individual capacities. IT IS FURTHER ORDERED that plaintiff's claims brought against defendants Missouri Department of Corrections, Corizon Medical, MOSOP, Anne Precythe, Terri Lawson, Scott OKelley, and Elizabeth Atterbury are DISMISSED without prejudice. IT IS FURTHER ORDERED that plaintiff's claims brought against defendants Robert Killian, Steven Pfister, E. Gould, and Christine Dicus in their official capac ities are DISMISSED without prejudice. IT IS FURTHER ORDERED that plaintiff's motion to appoint counsel is DENIED without prejudice. [ECF No. 5 ] IT IS FURTHER ORDERED that plaintiff's first motion for preliminary injunction is DENIED without prejudice. [ECF No. 4 ] An Order of Partial Dismissal will accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 07/19/2021. (ANP)

Case: 4:21-cv-00010-JCH Doc. #: 19 Filed: 07/19/21 Page: 1 of 11 PageID #: 96

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL D. BLEDSOE,
Plaintiff,
v.
MISSOURI DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 4:21-CV-10-JCH

MEMORANDUM AND ORDER
This matter is before the Court on initial review of self-represented plaintiff Michael D.
Bledsoe’s complaint pursuant to 28 U.S.C. § 1915(e). 1 For the following reasons, the Court will
issue process on the complaint as to defendants Robert Killian, Steven Pfister, E. Gould, and
Christine Dicus in their individual capacities. The Court will dismiss without prejudice defendants
Missouri Department of Corrections, Corizon Medical, MOSOP, Anne Precythe, Terri Lawson,
Scott O’Kelley, and Elizabeth Atterbury.
Legal Standard on Initial Review
This Court is required to review a complaint filed in forma pauperis, and must dismiss it
if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.
§ 1915(e)(2). 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).

The Court has previously granted plaintiff in forma pauperis status pursuant to 28 U.S.C. 1915(a)(1). See
ECF No. 14.
1

Case: 4:21-cv-00010-JCH Doc. #: 19 Filed: 07/19/21 Page: 2 of 11 PageID #: 97

A claim is facially plausible 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). Although a plaintiff need not allege facts in painstaking detail,
the facts alleged “must be enough to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. This standard “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Iqbal, 556 U.S. 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 assume the veracity of wellpleaded 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 pro se 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 so as to excuse mistakes by those
who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).
The Complaint
Plaintiff brings this prisoner civil rights action pursuant to 42 U.S.C. § 1983 against
defendants the Missouri Department of Corrections (“MDOC”), Corizon Medical, the Missouri
Sexual Offender Program (“MOSOP”), Anne Precythe (Director, MDOC), Teri Lawson (Warden,

-2-

Case: 4:21-cv-00010-JCH Doc. #: 19 Filed: 07/19/21 Page: 3 of 11 PageID #: 98

Farmington Correctional Center), Scott O’Kelley (Director of Mental Health, MDOC), Robert
Killian (MOSOP), Dr. Elizabeth Atterbury (Regional Director of Mental Health, MDOC), Steven
Pfister (Manager of Operations, MOSOP), E. Gould (MOSOP), and Christine Dicus (MOSOP).
Plaintiff sues all defendants in their official and individual capacities.
In his complaint, plaintiff states he is an African-American man and was convicted of a
sexually violent offense. He is serving a fifteen-year sentence in the MDOC. Plaintiff states that
on November 26, 2018 he was placed in MOSOP. He states he was racially discriminated against
in the program and unfairly terminated from the program on November 12, 2019. Had plaintiff
successfully completed MOSOP, he states he would not have had to serve twenty-seven months
of his sentence, and he would have been released from prison on December 13, 2019.
Plaintiff states that as a part of MOSOP, he participated in defendant Dicus’s group therapy
sessions for seven months and completed the curriculum through to the presentation process. He
states that after his presentation to Dicus, she did not mention to him any deficiencies in his
presentation or allow him to correct his presentation. Rather, she referred plaintiff directly to his
three-member treatment team. Plaintiff alleges Dicus’s failure to allow plaintiff to correct the
deficiencies in his presentation was racially discriminatory. “My therapist [Dicus], who was also
a white woman, sought to intentionally stop me from completing the program, by referring me to
the treatment team, instead of allowing me to correct my presentation deficiencies, and complete
the MOSOP program.” The three-member treatment team spoke with plaintiff for approximately
fifteen minutes and terminated plaintiff from the program.
Plaintiff states that the other ten men participating in his group therapy sessions with Dicus
were all white and were allowed to correct deficiencies in their presentations before presenting to
their treatment teams. He believes he was discriminated against because of his race and “[h]ad

-3-

Case: 4:21-cv-00010-JCH Doc. #: 19 Filed: 07/19/21 Page: 4 of 11 PageID #: 99

[he] been given the same opportunity as his other group members to correct his presentation
deficiencies, he would have completed the program satisfactorily, and would have been released
from prison on December 13, 2019.” ECF No. 1 at 12.
For relief, he seeks an unspecified amount of monetary damages for his “financial, mental,
and emotional injury.” Plaintiff also seeks a preliminary and permanent injunction granting him
and other people of color “equal opportunity to correct their deficiencies or presentation
deficiencies before being referred to the treatment team.”
Discussion
1.

Defendants Killian, Pfister, Gould, and Dicus

Defendants Killian, Pfister, and Gould were the three members of plaintiff’s MOSOP
treatment team, and defendant Dicus was plaintiff’s group therapist. Missouri law requires
convicted sex offenders to complete MOSOP, a rehabilitative treatment program MDOC created,
before they may be considered for conditional release. See Mo. Rev. Stat. § 589.040; Cross v.
MHM Corr. Servs., Inc., 2014 WL 5385113, * 5 (E.D. Mo. Oct. 10, 2014) (citing State ex rel.
Nixon v. Pennoyer, 39 S.W.3d 521, 522 & n.2 (Mo. Ct. App. 2001)). “The statute directs MDOC
to develop a rehabilitation program for sex offenders, and since 1990 requires that all persons
imprisoned for sexual assault offenses successfully complete the program prior to being eligible
for parole or conditional release.” Id. This requirement has been interpreted as requiring
completion of MOSOP before release on parole and does not extend a prisoner’s sentence. Jones
v. Moore, 996 F.2d 943, 945 (8th Cir. 1993).
The Eighth Circuit has long held that participation in MOSOP does not confer a liberty
interest in the possibility of parole or in conditional release because “there is no constitutional or
inherent right of a convicted person to be conditionally released before the expiration of a valid

-4-

Case: 4:21-cv-00010-JCH Doc. #: 19 Filed: 07/19/21 Page: 5 of 11 PageID #: 100

sentence.” Page v. Motley, 2013 WL 1192601, *3 (E.D. Mo. Mar. 22, 2013) (quoting Greenholtz
v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979)). Because inmates have no liberty
interest in parole, no procedural due process protections attach to their participation in MOSOP.
Courts have consistently ruled against inmates asserting § 1983 claims arising out of their denial
of access to MOSOP or their termination from MOSOP based on due process grounds. See
Persechini v. Callaway, 651 F.3d 802 (8th Cir. 2011); Jones, 966 F.2d at 945; Cross, 2014 WL
5385113; Page, 2013 WL 1192601, *3.
Plaintiff’s case presents a unique question, however, in that he is not alleging his due
process rights were violated when defendants terminated him from MOSOP. Rather, he states his
termination from MOSOP was racially motivated and thus defendants deprived him of his
constitutional right to equal protection. The equal protection clause requires that Missouri state
law treats similarly those similarly situated. U.S. CONST., amend. XIV. Treating prisoners
differently based upon the nature of their crimes (for example, drug crimes or sex crimes) does not
violate the equal protection clause. See Gale v. Moore, 763 F.2d 341, 343-44 (8th Cir. 1985)
(“[MOSOP’s] goal of preventing sex crimes through rehabilitation and deterrence apparently
constitutes a rational basis and justifies the classification which may have been given
thereunder.”); Patterson v. Webster, 760 F. Supp. 150, 152 (E.D. Mo. 1991) (“[N]o equal
protection violation results from establishing a different standard of parole for sexual offenders.”);
Russell v. Eaves, 722 F. Supp. 558, 560 (E.D. Mo. 1989) (same). Treating prisoners accused of
sexually violent crimes differently because of their race, however, likely would violate the equal
protection clause.
Liberally construed, plaintiff alleges that his three-member treatment team (Killian, Pfister,
and Gould) and his group therapy coordinator (Dicus) treated him differently from other similarly

-5-

Case: 4:21-cv-00010-JCH Doc. #: 19 Filed: 07/19/21 Page: 6 of 11 PageID #: 101

situated sex offenders participating in MOSOP because of his race. He states that unlike his white
counterparts, he was not given any opportunity to correct the deficiencies in his MOSOP
presentation before termination from the program. On initial review, the Court finds that plaintiff
has stated a plausible claim for violation of his equal protection rights against defendants Killian,
Pfister, Gould, and Dicus in their individual capacities. For this reason, the Court will issue service
on plaintiff’s complaint as to these defendants in their individual capacities.
2.

Defendants Precythe, Lawson, O’Kelly, and Atterbury

Plaintiff’s allegations against defendants Precythe (Director, MDOC); Lawson (Warden,
FCC); O’Kelly (Director of Mental Health, MDOC); and Atterbury (Regional Director of Mental
Health, MDOC) are subject to dismissal for failure to state a claim. Government officials may not
be held liable for unconstitutional conduct under a theory of respondeat superior. Rogers v. King,
885 F.3d 1118, 1122 (8th Cir. 2018). Liability in a § 1983 case is personal. Frederick v.
Motsinger, 873 F.3d 641, 646 (8th Cir. 2017). In other words, “[g]overnment officials are
personally liable only for their own misconduct.” S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir.
2015). As such, § 1983 liability “requires a causal link to, and direct responsibility for, the
deprivation of rights.” Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006) (quoting
Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990)); see also Kohl v. Casson, 5 F.3d 1141,
1149 (8th Cir. 1993) (dismissing plaintiff’s excessive bail claims because none of the defendants
set plaintiff’s bail, and therefore, “there can be no causal connection between any action on the
part of the defendants and any alleged deprivation” of plaintiff’s rights). To that end, a plaintiff
must allege facts connecting the defendant to the challenged action. See Bitzan v. Bartruff, 916
F.3d 716, 717 (8th Cir. 2019).

-6-

Case: 4:21-cv-00010-JCH Doc. #: 19 Filed: 07/19/21 Page: 7 of 11 PageID #: 102

Plaintiff does not allege defendants Precythe, Lawson, O’Kelly, and Atterbury engaged in
any racially discriminatory conduct. His claims rest solely on the conduct of his treatment team
and group therapy leader.

Because plaintiff has established no causal connection between

defendants Precythe, Lawson, O’Kelly, and Atterbury and the alleged constitutional violations, the
Court will dismiss all claims brought against these defendants.
3.

Defendants MDOC and MOSOP

Plaintiff’s claims against the MDOC and MOSOP must be dismissed for failure to state a
claim. “Section 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”); 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”). Furthermore,
an agency exercising state power is also not a person subject to suit under § 1983. See Barket,
Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 948 F.2d 1084, 1086 (8th Cir. 1991).
Moreover, the Eleventh Amendment bars suit against a state or its agencies for any kind of relief,
not merely monetary damages. Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007).
Plaintiff’s claims against MDOC and MOSOP are claims against a state agency and a state
program. However, as noted above, state agencies and programs are not “persons” for purposes
of § 1983. Furthermore, suit against MDOC is barred by the Eleventh Amendment. For these
reasons, the Court will dismiss plaintiff’s claims against MDOC and MOSOP.

-7-

Case: 4:21-cv-00010-JCH Doc. #: 19 Filed: 07/19/21 Page: 8 of 11 PageID #: 103

4.

Defendant Corizon Medical

“A corporation acting under color of state law cannot be liable on a respondeat superior
theory.” Smith v. Insley’s Inc., 499 F.3d 875, 880 (8th Cir. 2007). Rather, to support a claim
against such a corporation, the plaintiff “must show that there was a policy, custom, or official
action that inflicted an actionable injury.” Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006);
see also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975 (8th Cir. 1993) (stating that a
corporation acting under color of state law will only be held liable where “there is a policy, custom
or action by those who represent official policy that inflicts injury actionable under § 1983”);
Stearns v. Inmate Services Corp., 957 F.3d 902, 906 (8th Cir. 2020) (explaining that the “proper
test” for determining whether a corporation acting under color of state law is liable under 42 U.S.C.
§ 1983 “is whether there is a policy, custom, or action by those who represent…official policy that
inflicts injury actionable under § 1983”).
Plaintiff has not alleged any policy, custom, or official action of Corizon Medical inflicted
any actionable injury upon him. For this reason, plaintiff’s claims against defendant Corizon
Medical will be dismissed.
5.

Official Capacity Claims

Finally, plaintiff’s claims against defendants Killian, Pfister, Gould, and Dicus brought in
their official capacities will be dismissed. 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). In order to prevail on an official capacity claim, the plaintiff must establish

-8-

Case: 4:21-cv-00010-JCH Doc. #: 19 Filed: 07/19/21 Page: 9 of 11 PageID #: 104

the governmental entity’s liability for the alleged conduct. Kelly v. City of Omaha, Neb., 813 F.3d
1070, 1075 (8th Cir. 2016).
Here, plaintiff has not established MDOC’s liability for the any allegedly unconstitutional
conduct, and therefore his official capacity claims against defendants Killian, Pfister, Gould, and
Dicus will be dismissed.
Motion to Appoint Counsel
Plaintiff’s motion for appointment of counsel will be denied at this time. In civil cases, a
pro se litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith,
721 F.3d 940, 942 (8th Cir. 2013); see also Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998)
(stating that “[a] pro se litigant has no statutory or constitutional right to have counsel appointed
in a civil case”). Rather, a district court may appoint counsel in a civil case if the court is
“convinced that an indigent plaintiff has stated a non-frivolous claim…and where the nature of the
litigation is such that plaintiff as well as the court will benefit from the assistance of counsel.”
Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether to appoint
counsel for an indigent litigant, a court considers relevant factors such as the complexity of the
case, the ability of the pro se litigant to investigate the facts, the existence of conflicting testimony,
and the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cty. Jail, 437
F.3d 791, 794 (8th Cir. 2006).
After reviewing these factors, the Court finds that the appointment of counsel is not
warranted at this time. Plaintiff has demonstrated, at this point, that he can adequately present his
claims to the Court. Additionally, neither the factual nor the legal issues in this case appear to be
complex. The Court will deny without prejudice plaintiff’s motion for appointment of counsel.

-9-

Case: 4:21-cv-00010-JCH Doc. #: 19 Filed: 07/19/21 Page: 10 of 11 PageID #: 105

Motion for Preliminary Injunction
Plaintiff filed a motion for preliminary injunction along with his complaint. See ECF No.
4. On July 6, 2021, plaintiff filed a duplicative motion for preliminary injunction and attached a
proposed order. See ECF No. 12. Because plaintiff’s second motion for preliminary injunction is
duplicative of his first, the Court will deny without prejudice plaintiff’s first motion for preliminary
injunction. After defendants have been served with process and have responded to plaintiff’s
complaint, the Court will order defendants to respond to plaintiff’s second motion for preliminary
injunction in accordance with the Federal Rules of Civil Procedure.
Accordingly,
IT IS HEREBY ORDERED that the Clerk of Court shall issue process or cause process
to issue upon the complaint, pursuant to the service agreement the Court maintains with the
Missouri Attorney General’s Office, as to defendants Robert Killian, Steven Pfister, E. Gould, and
Christine Dicus in their individual capacities.
IT IS FURTHER ORDERED that plaintiff’s claims brought against defendants Missouri
Department of Corrections, Corizon Medical, MOSOP, Anne Precythe, Terri Lawson, Scott
O’Kelley, and Elizabeth Atterbury are DISMISSED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s claims brought against defendants Robert
Killian, Steven Pfister, E. Gould, and Christine Dicus in their official capacities are DISMISSED
without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel is DENIED
without prejudice. [ECF No. 5]
IT IS FURTHER ORDERED that plaintiff’s first motion for preliminary injunction is
DENIED without prejudice. [ECF No. 4]

-10-

Case: 4:21-cv-00010-JCH Doc. #: 19 Filed: 07/19/21 Page: 11 of 11 PageID #: 106

An Order of Partial Dismissal will accompany this Memorandum and Order.
Dated this 19th day of July, 2021.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
JEAN C. HAMILTON

-11-