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govinfo:USCOURTS-moed-4_25-cv-01739-0
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAVON DUSTIN MARSH,
)
)
Plaintiff, )
)
v. ) No. 4:25-cv-01739-SPM
)
MISSOURI DEPARTMENT OF
CORRECTIONS, et al.,
)
)
)
Defendants. )
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on self -represented Plaintiff Javon Dustin
Marsh’s Application to Proceed in District Court Without Prepaying Fees and Costs.
Based on Plaintiff’s financial information, the Court grants his application and
assesses an initial partial filing fee of $ 11.30. Additionally, for the following
reasons, the Court dismisses without prejudice Plaintiff’s claims against Defendants
the Missouri Department of Corrections, Richard Adams, Tim Freeman, Centurion,
Derek Weston, and Heather Cofer. See 28 U.S.C. § 1915(e)(2). The Court issues
process on the complaint as to Defendants Jacob Smith, Kevin Dahmm, and Chasity
D. Grayson in their individual capacities.
Initial Partial Filing Fee
A prisoner bringing a civil action is required to pay the full amount of the
filing fee. 28 U.S.C. § 1915(b)(1). If the prisoner has insufficient funds in his prison
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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. 28 U.S.C. §
1915(b)(2). The agency having custody of the prisoner will forward these monthly
payments to the Clerk of Court each time the amount in the prisoner’s account
exceeds $10, until the filing fee is fully paid. Id.
Plaintiff has submitted a certified account statement for the period April 1,
2025 to October 26, 2025. Based on this information, the Court finds that Plaintiff
has an average monthly deposit of $56.50. The Court will assess an initial partial
filing fee of $11.30, which is 20 percent of Plaintiff’s average monthly deposit.
Legal Standard
Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint
filed in forma pauperis if it is frivolous or malicious, or if it fails to state a claim
upon which relief may be granted. To state a claim under 42 U.S.C. § 1983, a
plaintiff must demonstrate a plausible claim for relief, which is more than a “mere
possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court
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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. 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, 820
F.3d 958, 964 (8th Cir. 2016); see also Brown v. Green Tree Serv. LLC , 820 F.3d
371, 372-73 (8th Cir. 2016).
When reviewing a pro se complaint under 28 U.S.C. § 1915(e)(2), the Court
must give it the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519,
520 (1972). A “liberal construction” means that, “if the essence of an allegation is
discernible . . . then the district 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)). But even pro se complaints must “allege facts, which
if true, state a claim as a matter of law.” Martin v. Aubuchon, 623 F.2d 1282, 1286
(8th Cir. 1980); see also Stone , 364 F.3d at 914-15 (federal courts are not required
to “assume facts that are not alleged, just because an additional factual allegation
would have formed a stronger complaint”).
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The Complaint
Plaintiff brings this civil rights action under 42 U.S.C. § 1983, alleging
Defendants used excessive force when they assaulted him while his hands were
cuffed behind his back. He names as Defendants the Missouri Department of
Corrections; Jacob Smith (CO, Eastern Reception, Diagnostic and Correctional
Center (ERDCC)); Kevin Dahmm (CO, ERDCC); Derek Weston (CO, ERDCC);
Richard Adams (Superintendent, ERDCC); Tim Freeman (Assistant Superintendent,
ERDCC); Heather Cofer (Deputy Warden, ERDCC); Centurion; and Chasity D.
Grayson (RN, Centurion). Plaintiff sues Defendants in their individual and official
capacities. See Doc. 1 at 17.
Plaintiff states that on November 29, 2023, while he was handcuff ed behind
his back, he was severely beaten by Defendants Jacob Smith and Kevin Dahmm. He
states Defendants “left [him] on security bench to urinate on the floor before [he]
was ever offered a cell.” Id. at 11. Once he was assigned a cell, the inmate already
assigned to that cell refused to cell with Plaintiff . Plaintiff returned to the security
bench. At this time Defendant Smith was holding Plaintiff by the arm. Smith then
cursed at Pl aintiff and grabbed his neck. Plaintiff fell backward to the floor. He
started to have an asthma attack, and Smith and Dahmm jumped on top of him. They
laid on top of Plaintiff while he suffered breathing problems and could not speak.
Plaintiff “was forcefully help[ed] to his feet and rushed to the other side of [the]
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house and both defendants made the Plaintiff bump into the doorways, upon arrival
to C-wing.” Id. at 12.
Dahmm and Smith took Plaintiff to a suicide cell where the camera was
covered. They rammed him into the wall of the cell, removed his clothes, and
pressed him up to the wall. “Defendants made terrifying vulgar statements towards
the Plaintiff such as do n’t nobody care for your breathing problem (I’ll spray your
stupid ass),” and then forcefully pulled his shirt over his head. Id. at 13. Smith asked
Dahmm to get a suicide smock, which left Plaintiff in the cell alone with Smith.
Smith grabbed Plaintiff by the neck and forced him to the ground, punching him in
the back of the head and the side of his face. Smith held Plaintiff down until Dahmm
returned with the suicide smock.
Defendants left the cell “holding the Plaintiff while backing out the cell and
making sure the Plaintiff arms are through the food port.” With Plaintiff’s arms
through the food port, Dahmm then raised Plaintiff’s arms to the fullest extent,
causing severe pain in Plaintiff’s shoulder. Defendants removed Plaintiff’s cuffs
and Plaintiff grabbed the food port as he was still having problems breathing and he
needed medical attention. Defendant Smith then maced Plaintiff, stating, “[You’re]
[going to] burn all night.” Id. at 15.
At some point, Lieutenant Weston came to the cell to talk to Plaintiff. Plaintiff
“voiced the trauma and the pain he was going through and the assault that had
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happen[ed] from retaliation of some of the C.E.R.T. [Correctional Emergency
Response Team] team members.” Id. at 15. Lieutenant Weston tried to calm the
situation and shut the food port. Defendant Chasity Grayson came to assess Plaintiff
for his pain and his breathing, but “failed to help and denied all help [because] the
Plaintiff was on suicide watch and said I can’t give you [an] eye wash or nothing
[because] you [are] in that cell.” Plaintiff states he was subsequently denied medical
attention.
As a result of these incidents, Plaintiff’s left shoulder was in pain and he was
left in his maced cell all night, despite his breathing problems. For relief, he seeks
$24 million in damages plus punitive damages of $50,000 against each Defendant.
Discussion
I. Defendant Missouri Department of Corrections
Plaintiff’s claim against the Missouri Department of Corrections 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). 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). 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.
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1991). 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).
Because the Missouri Department of Corrections is not a person for purposes
of § 1983 and because the suit is also barred by the Eleventh Amendment, the Court
dismisses Plaintiff’s claim against the Missouri Department of Corrections.
II. Medical Defendant—Centurion and Chasity Grayson, RN
(A) Centurion
“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 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 constitutional violation attributable to any policy,
custom, or official action of Centurion. To the contrary, he alleges that “Centurion
ha[s] guidelines that [were] not followed and failed to protect the Plaintiff . . . .”
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Doc. 1 at 16. Based on these allegations, his alleged constitutional violations were
attributable to individuals acting in contravention of Centurion’s policies and
customs. Therefore, the Court dismisses Plaintiff’s claims against Centurion for
failure to state a claim upon which relief may be granted.
(B) Chasity Grayson, RN
Plaintiff alleges Defendant Chasity Grayson came to assess Plaintiff after he
was maced and “failed to help and denied all help cause the Plaintiff was on suicide
watch and said I can’t give you an eye wash or nothing cause you[’re] in that cell.”
Doc. 1 at 16. He states his shoulder was in pain and he was left in his cell, which
had not been cleaned of the mace, all night and with asthma problems. Id. at 17.
To demonstrate constitutionally inadequate medical care, the inmate must
show that a prison official’s conduct amounted to deliberate indifference. Dulany v.
Carnahan, 132 F.3d 1234, 1237-38 (8th Cir. 1997). Under this standard, a plaintiff
must prove that he suffered from an objectively serious medical need, and that prison
officials actually knew of and disregarded that need. Roberts v. Kopel, 917 F.3d
1039, 1042 (8th Cir. 2019); see also Hamner v. Burls, 937 F.3d 1171, 1177 (8th Cir.
2019). Under the objective prong, the plaintiff must establish that he suffered from
an objectively serious medical need, while under the subjective prong, he or she must
show that a prison official actually knew of but disregarded that serious medical
need. See Jackson v. Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014).
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Liberally construed, Plaintiff has alleged he suffered from a serious medical
need after the alleged attack by Defendants Smith and Dahmm . He alleges he
suffered an asthma attack and struggled to breathe, especially after officers maced
him. He alleges Defendants Smith and Dahmm pushed his arms up while they were
in the food port, causing increased pain in his previously injured shoulder. His
allegations establish Defendant Gray son was aware of his serious medical needs,
and acted with deliberate indiffe rence toward these needs. The Court will order
service of process on Defendant Grayson.
III. Defendants Richard Adams, Tim Freeman, and Heather Cofer
Plaintiff alleges Defendant Richard Adams, Heather Cofer, and Tim Freeman
were “aware of their staff in the past and the present harming residents . . . and
allowed it to happen several times.” Doc. 1 at 17. Later in his complaint, he alleges
“Defendants . . . Adams, Freeman, Cofer, Grayson . . . knew or should have known
by the numerous previous prisoner complaints against Defendant Smith that their
failure to react and take disciplinary actions against Defen dant Smith . . . would
violate Plaintiff’s constitutional rights.” Id. at 21. He alleges these officers violated
his constitutional rights by failing to protect him against the violence of ERDCC
staff.
Although civil rights pleadings should be construed liberally, the complaint
must contain facts that state a claim and must not be conclusory. Frey v. City of
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Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995). Like the complaint in Ashcroft v.
Iqbal, which alleged that supervisory officials “knew of, condoned, and willfully
and maliciously agreed to” subject the plaintiff to harsh conditions for an illegitimate
reason, here Plaintiff’s conclusory allegations against Defendants Adams, Freeman,
and Cofer are not entitled to the presumption of truth. Iqbal, 129 S. Ct. at 1951.
Plaintiff has not stated any factual information that would support his
conclusion that these Defendants knew or should have known that Defendant Smith
would violate Plaintiff’s constitutional rights. “To prevail on a failure -to-protect
claim, an inmate must make two showings: (1) an objective component, that there
was a substantial risk of harm to the inmate, and (2) a subjective component, that the
prison official was deliberately indifferent to that risk. Deliberate indifference in
this context means that prison officials subjectively knew of and disregarded [the
inmate’s] safety risk.” Axelson v. Watson , 999 F.2d 541, 546 (8th Cir. 2021)
(internal citations and quotations omitted). Plaintiff does not allege any facts to
support his assertion that there had been prior inmate complaints against Defendant
Smith. He does not allege which inmates complained about Smith or the substance
of any of these complaints. He does not even allege that Defendant Smith had been
the subject of any prior exce ssive force incidents. See Wilson v. City of N. Little
Rock, 801 F.2d 316, 323 (8th Cir. 1986). He cites to no prior lawsuits against
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Defendant Smith. Nor does he plead adequately that these supervisory Defendants
acted with the impermissible purpose required by Iqbal.
Plaintiff’s conclusory allegations against Defendants Adams, Freeman, and
Cofer are insufficient to state a claim that is plausible on its face. For these reasons,
the Court will dismiss these Defendants for failure to state a claim upon which relief
may be granted.
IV. Defendant Lieutenant Derek Weston
Plaintiff alleges Lieutenant Derek Weston was a “Correctional Program Spec”
at ERDCC. Doc. 1 at 8. He states that after Defendant Smith maced him, Defendant
Weston “came to the cell to talk about what had happened, the plaintiff voiced the
trauma and the pain he was going through and the assault that had happen[ed].” Doc.
1 at 15. Also, “Lt. Weston was trying to persuade this situation, to get the food port
shut by any means necessary” Doc. 1 at 16. These allegations do not establish
Defendant Weston had any involvement in the alleged constitutional violations. Nor
do they establish Defendant Weston violated any constitutional rights of Plaintiff.
For these reasons, the Court will dismiss Plaintiff’s claims against Defendant
Weston for failure to state a claim upon which relief may be granted.
V. Defendants Jacob Smith and Kevin Dahmm
(A) Individual Capacity Claims
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The Eighth Amendment forbids the “unnecessary and wanton infliction of
pain” constituting cruel and unusual punishment. Hudson v. McMillan, 503 U.S. 1,
9-10 (1992); see also Burns v. Eaton, 752 F.3d 1136, 1138 ( 8th Cir. 2014) (“After
incarceration, only the unnecessary and wanton infliction of pain constitutes cruel
and unusual punishment forbidden by the Eighth Amendment”). When a prison
official is accused of using excessive physical force in violation of the Eighth
Amendment, the core judicial inquiry is “whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause
harm.” Jackson v. Gutzmer, 866 F.3d 969, 974 ( 8th Cir. 2017). The factors to be
considered in determining whether force was used in good faith include “the need
for the application of force, the relationship between the need and the amount of
force that was used, and the extent of injury inflicted.” Whitley v. Albers, 475 U.S.
312, 321 (1986).
Plaintiff alleges Defendants Smith and Dahmm beat him while his hands were
cuffed behind his back and he was not resisting. He alleges they continued to beat
him after his cell transfer and while he was in a suicide cell. Doc. 1 at 11-15. Based
on these factual allegations, the Court finds Plaintiff has stated a plausible claim
against Defendants Smith and Dahmm for excessive force in violation of the Eighth
Amendment. The Court orders service of the compliant on these officers in their
individual capacities.
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(B) Official Capacity Claims
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). To prevail on an official capacity claim, the
plaintiff must establish the governmental entity’s liability for the alleged conduct.
Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016).
As discussed above, Plaintiff fails to state a claim against MDOC, and
therefore his claims against Defendants Smith and Dahmm brought in their official
capacities will be dismissed for failure to state a claim upon which relief may be
granted. See supra at § I.
Motion for Appointment of Counsel
Finally, Plaintiff has filed a motion to appoint counsel. The motion 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). 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).
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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 Cnty Jail,
437 F.3d 791, 794 (8th Cir. 2006).
After reviewing these factors, the Court finds that the appointment of counsel
is not warranted. 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 entertain future motions for
appointment of counsel as the case progresses.
Conclusion
For these reasons, the Court will dismiss Plaintiff’s claims against Defendants
the Missouri Department of Corrections, Richard Adams, Tim Freeman, Derek
Weston, Centurion, and Heather Cofer for failure to state a claim upon which relief
may be granted. The Court will issue service on Defendants Jacob Smith, Kevin
Dahmm, and Chasity D. Grayson in their individual capacities.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s application to proceed in district
court without prepaying fees or costs is GRANTED. [Doc. 3]
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IT IS FURTHER ORDERED that Plaintiff must pay an initial filing fee of
$11.30 within 30 days of the date of this Order. Plaintiff is instructed to make his
remittance payable to “Clerk, United States District Court,” and to include on it: (1)
his name; (2) his prison registration number; (3) the case number; and (4) that the
remittance is for an original proceeding.
IT IS FURTHER ORDERED that Plaintiff’s claims brought against
Defendants the Missouri Department of Corrections, Richard Adams, Tim Freeman,
Derek Weston, Centurion, and Heather Cofer are DISMISSED without prejudice
under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief may
be granted.
IT IS FURTHER ORDERED that Plaintiff’s claims brought against
Defendants Jacob Smith, Kevin Dahmm, and Chasity D. Grayson in their official
capacities are DISMISSED without prejudice for failure to state a claim upon
which relief may be granted.
IT IS FURTHER ORDERED that the Clerk of Court shall issue process
upon the complaint, pursuant to the service agreement the Court maintains with
Centurion, as to Defendant Chasity D. Grayson in her individual capacity.
IT IS FURTHER ORDERED that the Clerk of Court shall issue process,
pursuant to the service agreement the Court maintains with the Missouri Attorney
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General’s Office, as to Defendants Jacob Smith and Kevin Dahmm in their
individual capacities.
IT IS FURTHER ORDERED that Plaintiff’s motion to appoint counsel is
DENIED without prejudice. [Doc. 2]
An Order of Dismissal will accompany this Opinion, Memorandum and
Order.
Dated this 5th day of June, 2026.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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