UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION □ JOSEPH MICHAEL DEVON ENGEL, ) Plaintiff, Vv. ) No. 4:20-cv-01738-RLW CORIZON MEDICAL, et al., Defendants. MEMORANDUM AND ORDER This matter comes before the Court on the motion of plaintiff Joseph Michael Devon Engel for leave to commence this civil action without prepayment of the required filing fee. (Docket No. 3). Based on the financial information provided by plaintiff, the motion will be granted, and the Court will assess an initial partial filing fee of $1.00. See

(b)(1). Additionally, for the reasons discussed below, the Court will dismiss plaintiff's complaint without prejudice.

(b)(1) Pursuant to

(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 or her 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 six-month 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.

(b)(2). The agency having custody of the prisoner will forward these monthly

payments to the Clerk of the Court each time the amount in the prisoner’s account exceeds $10.00, until the filing fee is fully paid. Jd. Plaintiff has not submitted a prison account statement as required by

(a)(2). Nevertheless, having reviewed the information provided by plaintiff, the Court will require him to pay an initial partial filing fee of $1.00. See Henderson v. Norris,

(8"" Cir. 1997) (when a prisoner is unable to provide the Court with a certified copy of his prison account statement, the Court should assess an amount “that is reasonable, based on whatever information the court has about the prisoner’s finances”). If plaintiff is unable to pay the initial partial filing fee, he must submit a copy of his prison account statement in support of his claim. Legal Standard on Initial Review Under

(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 under

, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal,

(2009). “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.” Jd. 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. Jd. at 679. The court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber,

(8 Cir. 2016). See also Brown v. Green Tree Servicing LLC,

(8" Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not required to “accept as true any legal conclusion couched as a factual allegation’).

When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit of a liberal construction. Haines v. Kerner,

(1972). A “liberal construction” means that if the essence of an allegation is discernible, the district court should construe the plaintiff's complaint in a way that permits his or her claim to be considered within the proper legal framework. Solomon v. Petray,

(8" Cir. 2015). However, 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,

(8" Cir. 1980). See also Stone v. Harry,

(8 Cir. 2004) (stating that 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 civil litigation must be interpreted so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States,

(1993). The Complaint Plaintiff is a self-represented litigant who is currently incarcerated at the Eastern Reception, Diagnostic and Correctional Center (ERDCC) in Bonne Terre, Missouri.’ Since September 9, 2020, he has filed over 130 cases in the United States District Court for the Eastern District of Missouri. Plaintiff brings the instant action pursuant to

. The complaint is handwritten on a Court-provided form, and names Corizon and the ERDCC as defendants. (Docket No. 1 at 2-3). In the “Statement of Claim,” plaintiff asserts that on November 22, 2020, at eight

'Tn the section of the form complaint to indicate his prisoner status, plaintiff has checked the box for “civilly committed detainee.” (Docket No. | at 2). However, plaintiff has also provided his prison registration number, and has acknowledged that he is being held at the ERDCC, a state correctional facility. Moreover, review of the Missouri Department of Correction’s online records show that plaintiff is a convicted state prisoner serving a ten-year sentence for, among other things, second-degree burglary. Therefore, the Court has determined that plaintiff is actually a convicted and sentenced state prisoner, and not a civilly committed detainee, for purposes of

review.

a.m., his “insides” felt like they were “on fire,” he was vomiting and defecating blood, he could not hold anything down, he was sweating and shaking uncontrollably, and he could not lay on his right side. (Docket No. 1 at 3). He further alleges that “medical” refused to “treat [him],” and that he is a sovereign citizen. As a result, plaintiff states that he has suffered injuries to his health and freedom, and that he has been subjected to “mind raping.” (Docket No. 1 at 4). He seeks $150 trillion in damages, and 2,000,000 in stocks from countries and companies such as Top USA, China, Japan, Germany, France, Italy, Russia, Coca Cola, Pepsi, Mountain Dew, Dr. Pepper, Keefe, Starbucks, Google, Facebook, and Android. (Docket No. 1 at 1, 5). Discussion Plaintiff is a self-represented litigant who brings this action pursuant to

, naming Corizon and the ERDCC as defendants. For the reasons discussed below, plaintiffs complaint must be dismissed pursuant to

(e)(2)(B). A. Corizon In order to state a

claim against a corporation, such as Corizon, that is acting under color of state law, a plaintiff “must show that there was a policy, custom, or official action that inflicted an actionable injury.” Johnson v. Hamilton,

(8" Cir. 2006). See also Sanders v. Sears, Roebuck & Co.,

(8" 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”); and Stearns v. Inmate Services Corp.,

(8" Cir. 2020) (explaining that the “proper test” for determining whether a corporation acting under color of state law is liable under

“is whether there is a policy, custom, or action by those who represent. ..official policy that

inflicts injury actionable under § 1983”). It is not enough for a plaintiff to simply claim that the corporation employed a person or persons who violated his constitutional rights. See Smith v. Insley’s Inc.,

(8" Cir. 2007) (“A corporation acting under color of state law cannot be liable on a respondeat superior theory”). In this case, plaintiff has arguably shown that he suffered from an objectively serious medical need on November 22, 2020. He has not, however, demonstrated that Corizon is liable to him for violating his constitutional rights by failing to treat him. To begin, plaintiff's claim that “Medical refuse[d] to treat [him],” is too vague to provide any explanation as to what actually occurred. In other words, there are no further factual allegations to demonstrate what he means, or to support his conclusory assertion. Instead, he leaves it to the Court to speculate, which is not sufficient to state a claim. See Torti v. Hoag,

(8" Cir. 2017) (“Courts are not bound to accept as true a legal conclusion couched as a factual allegation, and factual allegations must be enough to raise a right to relief above the speculative level”). More importantly, plaintiff s facts, such as they are, do not establish that the purported refusal to treat him came from a Corizon policy, custom, or official action, which is necessary to assert Corizon’s liability. Indeed, other than a broad reference to “Medical,” there is no real attempt by plaintiff to assert any responsibility whatsoever. To the extent that plaintiff seeks to hold Corizon responsible for the actions of its employees, he cannot recover under a theory of respondeat superior. For these reasons, plaintiff has failed to state a claim against Corizon. Therefore, the claim must be dismissed. B. ERDCC Plaintiff has sued the ERDCC, which is a state correctional facility within the Missouri Department of Corrections. As such, the claim against the ERDCC is the same as a claim against

the State of Missouri itself. The claim fails for two reasons. First, the State of Missouri is not a “person” for purposes of

. Second, the State of Missouri is protected by the doctrine of sovereign immunity. i. State is Not a

“Person” “Section 1983 provides for an action against a ‘person’ for a violation, under color of law, of another’s civil rights.” McLean v. Gordon,

(8" Cir. 2008). See also Deretich v. Office of Admin. Hearings,

, 1154 (8" 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,

(1989). See also Calzone v. Hawley,

(8" Cir. 2017) (asserting that a “State is not a person under § 1983”); and Kruger v. Nebraska,

(8" Cir. 2016) (explaining that “a state is not a person for purposes of a claim for money damages under § 1983”). In this case, as noted above, plaintiff has sued the ERDCC, a state correctional facility within the Missouri Department of Corrections. This claim is treated as being made against the State of Missouri itself. However, a state is not a “person” for purposes of

. Because plaintiff is missing an essential element of a § 1983 action, the claim against the ERDCC must be dismissed.

ii. Sovereign Immunity “Sovereign immunity is the privilege of the sovereign not to be sued without its consent.” Va. Office for Prot. & Advocacy v. Stewart,

, 253 (2011). The Eleventh Amendment has been held to confer immunity on an un-consenting state from lawsuits brought in federal court by a state’s own citizens or the citizens of another state. Edelman v. Jordan,

(1974). See also Webb v. City of Maplewood,

(8" Cir. 2018) (“The Eleventh

Amendment protects States and their arms and instrumentalities from suit in federal court”); Dover Elevator Co. y. Ark. State Univ.,

, 446 (8" Cir. 1995) (“The Eleventh Amendment bars private parties from suing a state in federal court”); and Egerdahl v. Hibbing Cmty. Coll.,

(8 Cir. 1995) “Generally, in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment”). The Eleventh Amendment bars suit against a state or its agencies for any kind of relief, not merely monetary damages. Monroe v. Arkansas State Univ.,

(8" Cir. 2007) (stating that district court erred in allowing plaintiff to proceed against state university for injunctive relief, and remanding matter to district court for dismissal). There are two “well-established exceptions” to the sovereign immunity provided by the Eleventh Amendment. Barnes v. State of Missouri,

(8 Cir. 1992). “The first exception to Eleventh Amendment immunity is where Congress has statutorily abrogated such immunity by clear and unmistakable language.” Jd. The second exception is when a state waives its immunity to suit in federal court. Jd. at 65. A state will be found to have waived its immunity “only where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.” Welch v. Tex. Dep’t of Highways & Pub. Transp.,

(1987). Neither exception is applicable in this case. The first exception is inapplicable, because the Supreme Court has determined that § 1983 does not revoke a state’s Eleventh Amendment immunity from suit in federal court. See Will,

(“We cannot conclude that § 1983 was intended to disregard the well-established immunity of a State from being sued without its consent’); and Quern v. Jordan,

(1979) (“[W]e simply are unwilling to believe...that Congress intended by the general language of § 1983 to override the traditional sovereign immunity of the States”). The second

exception is also inapplicable, because the State of Missouri has not waived its sovereign immunity in this type of case. See Mo. Rev. Stat. 537.600 (explaining that sovereign immunity is in effect, and providing exceptions). Here, as noted above, plaintiff's suit against the ERDCC, a state correctional facility, is treated as a claim against the state itself. However, the Eleventh Amendment bars suit against a state or its agencies for both monetary and injunctive relief. Furthermore, no exceptions to sovereign immunity are present in this case. Therefore, for this reason as well, plaintiffs claim against the ERDCC must be dismissed. C. Motion to Appoint Counsel Plaintiff has filed a motion to appoint counsel. (Docket No. 2). The motion will be denied as moot as this action is being dismissed pursuant to

(e)(2)(B). Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma pauperis (Docket No. 3) is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $1.00 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. IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel (Docket No. 2) is DENIED AS MOOT. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. See

(e)(2)(B). A separate order of dismissal will be entered herewith.

IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in good faith. Dated thisol/_ day of fa“ LM, , 2021.

ye Le NH? RONNIE L. WHITE UNITED STATES DISTRICT JUDGE