UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION MICHAEL CHARLES WALSH, ) Plaintiff, V. No. 1:21-CV-125 SNLJ WAYNE COUNTY JAIL, Defendant. MEMORANDUM AND ORDER This matter is before the Court on the motion of plaintiff Michael Charles Walsh, a former inmate at Wayne County Jail, for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the filing fee and will grant plaintiff's motion to proceed in forma pauperis. See

. Furthermore, based upon a review of the complaint, the Court finds that the complaint should be dismissed pursuant to

(e)(2)(B). Legal Standard on Initial Review This 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 may be granted.

(e)(2). An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 US. 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,

(2007). 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. Igbal,

(2009). 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. /d. at 679. The court must assume the veracity of well-pleaded facts, but need not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” /d. at 678 (citing Twombly,

). This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble,

(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,

(8th Cir. 2015) (quoting Stone v. Harry,

(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,

(8th Cir. 1980). Federal courts are not required to assume facts that are not alleged, Stone,

, nor are they required to interpret procedural rules so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States,

(1993). The Complaint Plaintiff, Michael Charles Walsh, filed the instant complaint pursuant to

against the Wayne County Jail on August 30, 2021.' Plaintiff claims that he arrived at the Wayne County Jail as a detainee on January 16, 2020. He asserts that a correctional officer named Kevin’ ordered plaintiff to “go into a room” and

'Plaintiff asserts that he is also bringing this action pursuant to the Prison Rape Elimination Act (PREA),

, et seg. However, there is no private right of action under the PREA. E.g., LeMasters v. Fabian,

, at *2 (D. Minn. May 18, 2009); Chinnici v. Edwards,

, at Vt. Aug. 12, 2008) (“The PREA is intended to address the problem of rape in prison, authorizes grant money, and creates a commission to study the issue.

er seg. The statute does not grant prisoners any specific rights.”). 2Plaintiff has not named Kevin as a defendant in this action. The sole defendant in this action is Wayne County Jail.

remove his clothing. Plaintiff asserts that he refused, Kevin got mad, and Kevin maced plaintiff while yelling for assistance. Plaintiff alleges that four other correctional officers came to Kevin’s aid, and plaintiff was “stripped by force.” Plaintiff refers to the incident of being stripped by force as a “sexual assault.” However, he does not indicate that he was raped by the four men. The Court interprets plaintiff's allegations to mean that he was merely stripped of his outside clothing and forced into clothing supplied by the Wayne County Jail. Plaintiff states that he was released from the Wayne County Jail on April 28, 2020. He asserts that his clothing was returned to him at that time. Plaintiff claims that the Wayne County Jail is responsible for the actions of its employees. Plaintiff seeks ten million dollars in damages in this lawsuit. Discussion The complaint is subject to dismissal. Plaintiff's claims against the Wayne County Jail are legally frivolous because the Jail cannot legally be sued. Ketchum v. City of West Memphis, Ark.,

(8th Cir. 1992) (departments or subdivisions of local government are “not juridical entities suable as such.”). Even if plaintiff had named the correctional officers who allegedly assaulted and/or maced him as defendants in this action, his claims would be subject to dismissal. Plaintiff's official capacity claims are actually “against the governmental entity itself.” See White v. Jackson,

(8" 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.,

(8" Cir. 1999). See also Brewington v. Keener,

(8"" Cir. 2018) (explaining that official capacity suit against sheriff and his deputy “must be treated as a suit against the County”); Kelly v. City of Omaha, Neb.,

(8"" Cir.

2016) (stating that a “plaintiff who sues public employees in their official, rather than individual, capacities sues only the public employer”); and Elder-Keep v. Aksamit,

, 986 (8" Cir. 2006) (stating that a “suit against a public official in his official capacity is actually a suit against the entity for which the official is an agent”). Thus, even if plaintiff had sued the correctional officer employees in this action, the claims would be against their employer, Wayne County. A local governing body such as Wayne County can be sued directly under § 1983. See Monell v. Dep't of Soc. Servs. of City of New York,

(1978). To prevail on this type of claim, the plaintiff must establish the municipality’s liability for the alleged conduct. Kelly,

. Such liability may attach if the constitutional violation “resulted from (1) an official municipal policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or supervise.” Mick v. Raines,

(8'" Cir. 2018). See also Marsh v. Phelps Cty.,

(8" Cir. 2018) (recognizing “claims challenging an unconstitutional policy or custom, or those based on a theory of inadequate training, which is an extension of the same”). Thus, there are three ways in which plaintiff can prove the liability of Wayne County. First, plaintiff can show that Wayne County had an unconstitutional policy. “Policy” refers to “official policy, a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters.” Corwin v. City of Independence, Mo.,

(8" Cir. 2016). See also Russell v. Hennepin Cty.,

, 847 (8" Cir. 2005) (“A policy is a deliberate choice to follow a course of action made from among various alternatives by the official or officials responsible...for establishing final policy with respect to the subject matter in question”). For a policy that is unconstitutional on its face, a plaintiff needs no other evidence than a statement of the policy and its exercise. Szabla v. City of Brooklyn, Minn.,

(8" Cir. 2007). However, when “a policy is constitutional on its face, but it is asserted that a municipality should have done more to prevent constitutional violations by its employees, a plaintiff must establish the existence of a ‘policy’ by demonstrating that the inadequacies were a product of deliberate or conscious choice by the policymakers.” Jd. at 390. Alternatively, plaintiff can establish a claim of liability based on an unconstitutional “custom.” To do so, plaintiff must demonstrate: 1) The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity’s employees; 2) Deliberate indifference to or tacit authorization of such conduct by the governmental entity’s policymaking officials after notice to the officials of that misconduct; and 3) That plaintiff was injured by acts pursuant to the governmental entity’s custom, i.e., that the custom was a moving force behind the constitutional violation.

Johnson v. Douglas Cty. Med. Dep’t,

(8" Cir. 2013). Finally, plaintiff can assert a municipal liability claim against Wayne County by establishing a deliberately indifferent failure to train or supervise. To do so, plaintiff must allege a “pattern of similar constitutional violations by untrained employees.” S.M. v. Lincoln Cty.,

(8" Cir. 2017). A plaintiff does not need to specifically plead the existence of an unconstitutional policy or custom. Crumpley-Patterson v. Trinity Lutheran Hosp.,

, 591 (8 Cir. 2004). However, at a minimum, the complaint must allege facts supporting the proposition that an unconstitutional policy or custom exists. Doe ex rel. Doe v. Sch. Dist. of City of Norfolk,

, 614 (8" Cir. 2003). Here, there are no facts supporting the proposition that plaintiffs constitutional rights were violated due to an unconstitutional policy or custom. He has failed to articulate any

unconstitutional policy or custom allegedly implemented by the correctional officers employed by Wayne County. He also fails to present any facts indicating that Wayne County failed to train its employees. Instead, plaintiff's complaint focuses on one instance where correctional officers employed by Wayne County forced him to change into clothing supplied by the Jail. As such, plaintiff's official capacity claims against defendants must be dismissed. See Ulrich v. Pope Cty.,

(8 Cir. 2013) (affirming district court’s dismissal of Monell claim where plaintiff “alleged no facts in his complaint that would demonstrate the existence of a policy or custom” that caused the alleged deprivation of plaintiffs rights). Accordingly, IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF No. 2] is GRANTED. IT IS FURTHER ORDERED that this action is DISMISSED pursuant to

(e)(2)(B). An Order of Dismissal will accompany this Memorandum and Order. Dated this <7A~” ( day of September, 2021.

\ /]

SENIOR UNITED STATES DISTRICT JUDGE