Cothran et al v. Russell

Filing 116

ORDER by Judge Nanette K. Laughrey granting motion to dismiss certain claims (Doc. 106 ). The Court dismisses all claims against MDOC on the ground of sovereign immunity, dismisses the claims against Precythe and Korneman because Cothran has not exhausted his administrative remedies as the PLRA requires, and dismisses Cothran's claim against Russell in his official capacity as moot. (Sreeprakash, Netra)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
DEANDRE JEROD COTHRAN,
Plaintiff,
v.

Case No. 2:17-cv-04012-NKL

JAMES RUSSELL, et al.,
Defendants.

ORDER
Defendants the Missouri Department of Corrections (“MDOC”), Anne Precythe, Sherie
Korneman, and James Russell move to dismiss the first amended complaint filed by plaintiff
De’Andre Cothran. Doc. 106. For the following reasons, Defendants’ motion to dismiss is
granted.
I.

Background
Cothran’s amended complaint, which he filed on March 4, 2019, asserts claims pursuant

to 42 U.S.C. § 1983 against Russell, in both his individual and official capacities, for excessive
use of force (Count I) and against MDOC, Precythe, and Korneman, in their individual and official
capacities, for deliberate indifference (Count II). Cothran’s claims arise out of Russell’s discharge
of pepper spray into Cothran’s closed cell and the aftermath. On March 6, 2019, Defendants filed
the pending motion to dismiss.
II.

Standard
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint

“must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible

on its face.’” Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). A claim has facial plausibility when its allegations rise above the
“speculative” or “conceivable,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007), and
where “the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Such a complaint
will be liberally construed in the light most favorable to the plaintiff. Eckert v. Titan Tire Corp.,
514 F.3d 801, 806 (8th Cir. 2008).
III.

Discussion
A. Whether Sovereign Immunity Bars the Claim Against MDOC
Defendants argue that the claims against MDOC must be dismissed because MDOC is

entitled to sovereign immunity.

The doctrine of sovereign immunity provides that “an

unconsenting State is immune from suits brought in federal courts by her own citizens as well as
by citizens of another State.” Employees v. Missouri Pub. Health & Welfare Dep’t, 411 U.S. 279,
280 (1973).
A suit against MDOC is, in effect, a suit against the State of Missouri, which is absolutely
immune from liability under § 1983. See Lococo v. Florissant Police Dep’t, No. 08-0143 ERW,
2008 WL 554254, *2 (E.D. Mo. Feb. 27, 2008) (“[A] suit against the Missouri Department of
Corrections . . . is, in effect, a suit against the State of Missouri; however, the State of Missouri is
not a ‘person’ for purposes of a § 1983 action and is absolutely immune from liability under
§ 1983.” (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 63 (1989))).
Cothran argues that the doctrine is “applicable only to any claim for monetary damages
against the DOC.” Doc. 113 (Plaintiff Deandre Cothran’s Suggestions in Opposition to
Defendants’ Motion to Dismiss), p. 3. However, “[t]his jurisdictional bar applies regardless of the
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nature of the relief sought.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984);
see also Harris v. McSwain, 417 F. App’x 594, 595 (8th Cir. 2011) (“[The] Eleventh Amendment
bars suits against states and state agencies for any kind of relief.”). Cothran’s claim against MDOC
thus is barred by sovereign immunity and must be dismissed.
B. Whether Cothran Failed to Exhaust His
Administrative Remedies as to Precythe and Korneman
Defendants argue that Cothran’s claims against Precythe and Korneman must be dismissed
because Cothran did not file a grievance against them, and therefore has not exhausted his
administrative remedies. Doc. 107 (Defendants’ Memorandum of Law), p. 5.
The Prison Litigation Reform Act (“PLRA”) requires exhaustion of “such administrative
remedies as are available . . . .” 42 U.S.C. § 1997e(a). However, “nothing in the statute imposes
a ‘name all defendants’ requirement . . . .” Jones v. Bock, 549 U.S. 199, 217, 219 (2007). Thus,
Cothran’s failure to name Precythe and Korneman in his administrative grievance by itself is not
fatal to his claim.
On the other hand, Cothran’s administrative complaints were limited in scope. While
Cothran’s claim against Russell concerns the pepper-spray incident, his claim against Precythe and
Korneman concerns how Cothran was treated after Russell sprayed him. Cothran’s grievances
complain of the pepper spraying itself, but they do not discuss the aftermath. There is no mention
in any administrative complaint in the record1 of any delay in treating him or any failure to treat
him, or of any failure to provide him with access to running water after he was sprayed. Cothran

1

The Court is obligated “to make findings of fact on the question of exhaustion.” See Chelette v.
Harris, 229 F.3d 684, 688 (8th Cir. 2000) (holding that, “once the defendants filed their motion
to dismiss the court was obligated to proceed to determine whether in fact [plaintiff] had
exhausted his administrative remedies,” an inquiry “requiring . . . findings of fact on the question
of exhaustion.”).
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thus gave Precythe and Korneman no opportunity “to address complaints about the program [they]
administer[] before being subjected to suit” or to “improv[e] litigation that does occur by leading
to the preparation of a useful record.” Jones, 549 U.S. at 219. As such, the Court cannot but
conclude that Cothran failed to exhaust his administrative remedies as to the claims asserted
against Precythe and Korneman, and those claims must be dismissed.2
C. Whether the Eleventh Amendment Bars
Claims Against Russell in His Official Capacity
Defendants argue that the Eleventh Amendment bars the official-capacity claim against
Russell. The amended complaint alleges that Russell is a state employee. Doc. 103 (Amended
Complaint), ¶ 5. Generally, claims against state officials in their official capacity are considered
claims against the State. Kentucky v. Graham, 473 U.S. 159, 169 (1985). However, the Supreme
Court has recognized an important exception to this general rule: under the Ex parte Young
doctrine,3 “state officials may be sued in their official capacities for prospective injunctive relief
without violating the Eleventh Amendment.” Monroe v. Arkansas State Univ., 495 F.3d 591, 594
(8th Cir. 2007).
Defendant Russell, however, has retired and is no longer employed by MDOC. Therefore,
it would be impossible for him to execute the injunctive relief that Cothran seeks. See Randolph
v. Rodgers, 253 F.3d 342, 345–46 (8th Cir. 2001) (finding prisoner’s claim for injunctive relief
moot as to prison officials not employed at prisoner’s current place of incarceration). The official-

2

Because the claims against Precythe and Korneman must be dismissed for failure to exhaust
administrative remedies, the Court need not consider whether the Eleventh Amendment protects
them from Cothran’s official-capacity claims, or whether qualified immunity protects them from
Cothran’s claims more generally.
3

See Ex parte Young, 209 U.S. 123 (1908).
4

capacity claim against Russell accordingly must be dismissed.
IV.

Conclusion
For the reasons discussed above, Defendants’ motion to dismiss is granted. The Court

dismisses all claims against MDOC on the ground of sovereign immunity, dismisses the claims
against Precythe and Korneman because Cothran has not exhausted his administrative remedies as
the PLRA requires, and dismisses Cothran’s claim against Russell in his official capacity as moot.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: May 18, 2019
Jefferson City, Missouri

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