govinfo:USCOURTS-moed-4_23-cv-00304-0

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MISSOURI 
EASTERN DIVISION 
 
ROBERT ALAN GRAY,  ) 
 ) 
               Plaintiff, ) 
 ) 
          v. ) No. 4:23-cv-00304-AGF 
 ) 
STATE OF MISSOURI DEPARTMENT  ) 
OF MENTAL HEALTH, et al., ) 
 ) 
               Defendants. ) 
 
 
MEMORANDUM AND ORDER 
 
 This matter is before the Court on self-represented plaintiff Robert Alan Gray’s application 
to proceed in the district court without prepaying fees and costs. Having reviewed the application 
and the financial information submitted in support, the Court will grant the motion and waive the 
filing fee. See 28 U.S.C. § 1915(a)(1). Furthermore, based on the allegations in the complaint, the 
Court finds plaintiff has stated a plausible claim for constitutional violations against  defendants 
Ailyn Holland and Melissa Koderick. The Court will order the Clerk of Court to issue process as 
to these defendants in their individual capacities. The Court will dismiss without prejudice 
defendants the State of Missouri Department of Mental Health and Denise Hacker  for failure to 
state a claim upon which relief may be granted.  
Legal Standard on Initial Review 
 Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed without 
prepayment of fees and costs if it is frivolous, is malicious, fails to state a claim upon which relief 
can be granted, or seeks monetary relief against a defe ndant who is immune from such relief . To 
state a claim for relief, a complaint must plead more than “legal conclusions” and “[t]hreadbare 
recitals of the elements of a cause of action [that are] supported by mere conclusory statements.”  
Case: 4:23-cv-00304-JMD     Doc. #:  5     Filed: 07/05/23     Page: 1 of 7 PageID #:
<pageID>
- 2 - 
Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).  A plaintiff must demonstrate a plausible claim for 
relief, which is more than a “mere possibility of misconduct.” Id. at 679.  “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.” Id. at 678. Determining whether 
a complaint states a plausible claim for relief is a context-specific task that requires the reviewing 
court to draw on its judicial experience and common sense. Id. at 679. 
When reviewing a self-represented plaintiff’s complaint under 28 U.S.C. § 1915, the Court 
accepts the well-pled facts as true, White v. Clark, 750 F.2d 721, 722 (8th Cir. 1984), and liberally 
construes the complaint. Erickson v. Pardus , 551 U.S. 89, 94 (2007) . 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, 795 F.3d 777, 787 (8th Cir. 2015). However, even self-represented 
plaintiffs are required to 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). 
The Complaint 
Plaintiff, a civilly committed resident of  the Missouri Department of Mental Health’s 
(“DMH”) Sex Offender Rehabilitation and Treatment Services (“SORTS”) facility, brings this 
action under 42 U.S.C. § 1983 alleging the DMH and three employees failed to protect him from 
an attack by a violent sexual offender. Plaintiff names as defendants  the DMH; Ailyn Holland, 
Security Support and Care Aide; Melissa Koderi ck, Registered Nurse; and Denise Hacker, Chief 
Operating Officer, Southeast Missouri Mental Health Center (“SMMHC”). He sues all defendants 
in both their official and individual capacities. 
Plaintiff states that on December 12, 2022, at approximately 1:05 a.m. at the SORTS 
facility in Farmington, Missouri, he was raped by resident LuJuan Tucker. Tucker had been moved 
Case: 4:23-cv-00304-JMD     Doc. #:  5     Filed: 07/05/23     Page: 2 of 7 PageID #:
<pageID>
- 3 - 
the day before to Hoctor building 6 from Hoctor building 4 because of prior violent behavior. He 
was assigned to plaintiff’s room. 
Plaintiff states that defendant Ailyn Holland, a security support and care aide, was working 
on the night of December 11, 2022. At approximately 1:05 a.m., during a routine ward check, 
Holland opened t he door to plaintiff’s room  and saw Tucker attacking plaintiff. She did not  
intervene. Defendant Melissa Koderick, the registered nurse assigned to H octor 6, was also 
working the night of December 11, 2022. Holland reported to Koderick what she had seen in  
plaintiff’s room, and Koderick failed to intervene or check on plaintiff.  
Plaintiff alleges defendant Denise Hacker, the Chief Operating Officer of SMMHC, failed 
to properly train staff to deal with these types of situations. She failed to separate extremely violent 
residents from other residents. Plaintiff states, “the COO is liable for every employee’s 
misconduct.” 
At some point, plaintiff was transported to Mercy Hospital in Festus, Missouri by SORTS 
escort staff.  He received a rape test kit, three in jections, and a CT scan. His injections were of 
Truvada and Isentress, post-exposure prophylaxis medications used together to fight HIV. 
Plaintiff suffered from lower abdominal pain resulting from the rape. He also suffers from 
trauma, emotional distress, depression, and fear of reoccurrence. For relief, he seeks $23 million 
in punitive damages. 
Discussion 
Defendant State of Missouri, Department of Mental Health 
 Plaintiff’s claim against the DMH 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 
Case: 4:23-cv-00304-JMD     Doc. #:  5     Filed: 07/05/23     Page: 3 of 7 PageID #:
<pageID>
- 4 - 
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”) . Moreover, 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. , 
495 F.3d 591, 594 (8th Cir. 2007).   
Plaintiff’s claim against the DMH is a claim against a state agency. As noted above, a state 
agency is not a “person” for purposes of § 1983. Furthermore, su it against the DMH is barred by 
the Eleventh Amendment. Therefore, plaintiff’s claim against the DMH must be dismissed. 
Defendants Ailyn Holland and Melissa Koderick 
Officials at civil commitment facilities such as SORTS are constitutionally required to take 
reasonable measures to ensure resident’s safety and protect them from attack. See Nelson v. 
Shuffman, 603 F.3d 439, 446 (8th Cir. 2010). Because plaintiff is a civil detainee, as opposed to a 
prisoner, the obligation arises under the Fourteenth Amendment. Id at 446 n.3. The Fourteenth 
Amendment provides civil detainees at least the same level of constitutional protection as the 
Eighth Amendment. Id.  
Under both the Eighth and Fourteenth Amendments, t o prove a violation an inmate must 
fulfill two requirements, one objective and one subjective. Irving v. Dormire, 519 F.3d 441, 446 
(8th Cir. 2008). The first requirement is that, viewed objectively, the alleged deprivation of rights 
is sufficiently serious. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The second requirement is a 
subjective inquiry, and requires that the prisoner prove that the prison official had a “sufficiently 
culpable state of mind.” Id. “A prison official cannot be found liable under the Eighth Amendment 
for denying an inmate humane conditions of confinement unless the official knows of and 
disregards an excessive risk to inmate health or safety; the official must both be aware of facts 
Case: 4:23-cv-00304-JMD     Doc. #:  5     Filed: 07/05/23     Page: 4 of 7 PageID #:
<pageID>
- 5 - 
from which the inference could be drawn that a substantial risk of serious harm exists, and he must 
also draw the inference.” Lenz v. Wade, 490 F.3d 991, 995 (8th Cir. 2007). 
Plaintiff states that on a routine ward check, defendant Holland witnessed Tucker sexually 
assaulting plaintiff. Holland did nothing to stop the assault. At some point, Nurse Koderick knew 
of the attack and did nothing to stop the attack and did not check on plaintiff’s wellbeing. Liberally 
construed, t he Court finds that plaintiff has stated pla usible claims against defendants Ailyn 
Holland and Melissa Koderick for unconstitutional failure to protect.  The Court will order the 
Clerk of Court to issue summons on these two defendants in their individual capacities.1 
Defendant Denise Hacker 
Plaintiff alleges defendant Denise Hacker, as the Chief Operating Officer of SMMHC, is 
liable for every employee’s misconduct , and specifically the conduct of defendants Holland and 
Koderick. However, vicarious liability is inapplicable to § 1983 suits. Marsh v. Phelps Cty., 902 
F.3d 745, 754 (8th Cir. 2018). As such, “[g]overnment officials are personally liable only for their 
own misconduct.” S.M. v. Krigbaum , 808 F.3d 335, 340 (8th Cir. 2015). Thus, “a supervising 
officer can be liable for an inferior officer’s constitutional violation only if he directly participated 
in the constitutional violation, or if his failure to train or supervise the offending actor caused the 
deprivation.” Parrish v. Ball , 594 F.3d 993, 1001 (8th Cir. 2010); see also Morris v. Cradduck , 
954 F.3d 1055, 1060 (8th Cir. 2020) (“To state a claim against a supervisor, a plaintiff must show 
that the supervising official, through his own individual actions, violated the Constitution”). To 
 
1 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, plaintiff would have to establish the governmental entity’s liability for the 
alleged conduct.  Kelly v. City of Omaha, Neb. , 813 F.3d 1070, 1075 (8th Cir. 2016).  Plaintiff ’s 
allegations of such liability against the DMH have been dismissed. Thus plaintiff’s allegations  
against the individual defendants in their official capacities will be dismissed. 
 
Case: 4:23-cv-00304-JMD     Doc. #:  5     Filed: 07/05/23     Page: 5 of 7 PageID #:
<pageID>
- 6 - 
succeed, “[t]he plaintiff must demonstrate that the supe rvisor was deliberately indifferent to or 
tacitly authorized the offending acts,” which “requires a showing that the supervisor had notice 
that the training procedures and supervision were inadequate and likely to result in a constitutional 
violation.” Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996); see also Rogers v. King, 885 
F.3d 1118, 1122 (8th Cir. 2018) (“A supervisor may be liable under § 1983 if he (1) received notice 
of a pattern of unconstitutional acts committed by a subordinate, and (2) w as deliberately 
indifferent to or authorized those acts”).  
Plaintiff alleges in a conclusory manner that Hacker should be held responsible under a 
failure to train theory. Plaintiff alleges no facts to support his allegations that the COO was charged 
with training staff or had notice that any training procedures were inadequate. Nor does he allege 
Hacker had notice of prior unconstitutional acts of SMMHC’s employees.  “While legal 
conclusions can provide the framework of a complaint, they must b e supported by f actual 
allegations.” Iqbal, 556 U.S. at 679. Plaintiff has failed to plead specific facts establishing any 
connection between Hacker and the alleged constitutional violation.  The Court will dismiss 
plaintiff’s claims against defendant Hacker pursuant to 28 U.S.C. § 1915(e)(2)(B). 
Motion for Appointment of Counsel 
 Finally, plaintiff’s motion for ap pointment of counsel  will be denied without prejudice . 
There is no constitutional or statutory right to appointed counsel in civil cases. See Nelson v. 
Redfield Lithograph Printing , 728 F.2d 1003, 1004 (8th  Cir. 1984). To determine whether to 
appoint counsel, the Court considers several factors, including wh ether: (1) the plaintiff has 
presented non-frivolous allegations supporting his or her prayer  for relief; (2) the plaintiff will 
substantially benefit from the appointment of counsel; (3) there is a need to further investigate and 
present the facts related to the plaintiff’s allegations; and (4) the factual and legal issues presented 
Case: 4:23-cv-00304-JMD     Doc. #:  5     Filed: 07/05/23     Page: 6 of 7 PageID #:
<pageID>
- 7 - 
by the action  are complex. See Johnson v. Williams , 788 F.2d 1319, 1322 -23 (8th Cir. 1986); 
Nelson, 728 F.2d at 1005. 
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 plaintiff’s motion for appointment of counsel without prejudice. 
Accordingly, 
IT IS HEREBY ORDERED that plaintiff’s application to proceed in the district court 
without prepaying fees and costs is GRANTED. [ECF No. 2] 
IT IS FURTHER 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 Ailyn Holland and Melissa Koderick in their 
individual capacities. 
IT IS FURTHER  ORDERED that defendants State of Missouri Department of Mental 
Health and Denise Hacker are DISMISSED without prejudice. 
IT IS FURTHER ORDERED that plaintiff’s claims against defendants Ailyn Holland 
and Melissa Koderick brought 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. 4] 
An order of partial dismissal will accompany this memorandum and order. 
 
 Dated this 5th day of July, 2023. 
 
   
 AUDREY G. FLEISSIG 
 UNITED STATES DISTRICT JUDGE 
Case: 4:23-cv-00304-JMD     Doc. #:  5     Filed: 07/05/23     Page: 7 of 7 PageID #:
<pageID>

Passage view · GavelSight