McSean v. Lemons

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KELLY MCSEAN,
Plaintiff,
v.
MARY LEMONS,
Defendant.
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No. 4:25-cv-01314-SPM
OPINION, MEMORANDUM AND ORDER
Before the Court is self-represented Plaintiff Kelly McSean’s Application to
Proceed in District Court Without Prepaying Fees and Costs. Based on Plaintiff’s
financial information, the Court grants her Application and assesses an initial partial
filing fee of $24.75. For the following reasons, on initial review, the Court dismisses
Plaintiff’s complaint for failure to state a claim upon which relief may be granted.
Initial Partial Filing Fee
Pursuant to 28 U.S.C. § 1915(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
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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 ledger from her prison account for the six-month
period from March 12, 2025 to September 4, 2025. A review of Plaintiff’s account
shows she had an average monthly deposit of $123.75. 	The Court will charge an
initial partial filing fee of $24.75, 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 can 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 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
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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).
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). 	And “procedural rules in ordinary civil litigation” need not be
“interpreted so as to excuse mistakes by those who proceed without counsel.”
McNeil v. United States, 508 U.S. 106, 113 (1993).
The Complaint
Plaintiff, a transgender woman incarcerated at Eastern Reception, Diagnostic
and Correctional Center, brings this First Amendment retaliation case against
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Defendant Mary Lemons.1 Plaintiff alleges Defendant Lemons yelled at her after
she filed a grievance regarding the denial of her request for female undergarments.
Plaintiff alleges that while she was incarcerated at the St. Francois County
Jail, she submitted a request to the canteen officer requesting to purchase female
undergarments. 	On June 21, 2023, Defendant Mary Lemons was escorted to
Plaintiff’s cell by several correctional officers. She entered H-Pod asking, “Where
is he, What cell is he in?” Doc. 1 at 6. Plaintiff alleges Lemons yelled and cursed
at her “saying they have told you [that] you are not a woman, and you[’re] not going
to wear female undergarments.” 	Id. 	Another officer, Officer Baindridge, forced
Plaintiff to say, “Yes Ma’am.”2
Plaintiff alleges Defendant’s actions caused pain and suffering, loss of
enjoyment of life, and severe emotional distress. 	Id. at 8. 	She seeks nominal,
compensatory, and punitive damages of an undetermined amount.
Discussion
“A citizen’s right to exercise First Amendment freedoms without facing
retaliation from government officials is clearly established.” 	Baribeau v. City of
1 Plaintiff identifies Mary Lemons only as a “road officer.” But she alleges Lemons works for
the St. Francois County Sheriff’s Department and not the Missouri Highway Patrol. Doc. 1 at 2,
5. It seems Plaintiff might be referring to Lemons as a “rogue officer.”
2 Plaintiff’s action against Officer Baindridge alleging First Amendment retaliation arising out of
this incident was dismissed on summary judgment. See McSean v. Baindridge, 4:23-cv-1086-
CDP (E.D. Mo. Jan. 23, 2026). The Court found Baindridge was entitled to qualified immunity.
“While cases have addressed instances in which jail officials unconstitutionally retaliated against
inmates with threats of serious harm to safety, physical and verbal intimidation, harassment, and
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Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010) (quotation omitted). 	Those First
Amendment freedoms include the right to seek redress under a prison’s grievance
system. 	Santiago v. Blair, 707 F.3d 984, 994 (8th Cir. 2013). To establish a First
Amendment claim of retaliation under § 1983, Plaintiff must show that: 	(1) she
engaged in protected activity, (2) Defendant took adverse action against her that
would chill a person of ordinary firmness from continuing in the activity, and (3) the
adverse action was motivated by Defendant’s retaliatory animus toward Plaintiff’s
exercise of the protected activity. 	Nieters v. Holtan, 83 F.4th 1099, 1110 (8th Cir.
2023).
“The ordinary-firmness test is well established in the case law, and is designed
to weed out trivial matters from those deserving the time of the courts as real and
substantial violations of the First Amendment.” 	Santiago v. Blair, 707 F.3d 984,
992 (8th Cir. 2013) (quoting Garcia v. City of Trenton, 348 F.3d 726, 728 (8th Cir.
2003)). De minimis injuries do not rise to the level of real and substantial violations
of the First Amendment. “[T]here are some injuries so de minimis that they do not
rise to the level of a constitutional violation.” Doering v. Reed, 2016 WL 3148642,
*3 (W.D. Ark. Apr. 29, 2016) (collecting cases where de minimis allegations were
deprivation in living conditions . . . those cases do not address a sufficiently close analogue to the
circumstances here where Bainbridge did not engage in threatening, intimidating, or harassing
behavior nor impose any conditions on McSean that could be considered retaliatory.” Id. at Doc.
105.
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insufficient to support a retaliation claim); Rustan v. Rasmussen, 2000 WL 227987,
*2 (8th Cir. Feb. 11, 2000) (per curiam) (issuing summary judgment for defendants
on plaintiff’s claims of retaliatory verbal harassment; finding verbal threats are not
constitutional violations cognizable under §1983).
Here, Plaintiff does not allege that Defendant threatened her. Plaintiff alleges
Defendant yelled, “They have told you [that] you are not a woman and you[’re] not
going to wear female undergarments.” Doc. 1 at 6. The Court cannot find any case
or legal authority—and Plaintiff cites to none—in which a court has found yelling,
without using threatening language, would chill a person of ordinary firmness from
engaging in protected activity. 	See Doering, 2016 WL 3148642 at *3; Naucke v.
City of Park Hills, 284 F.3d 923, 928 (8th Cir. 2002) (finding harassing, offensive,
unprofessional, and inappropriate comments insufficient to deter a person of
ordinary firmness from continuing to speak out). For these reasons, the Court will
dismiss Plaintiff’s complaint for failure to state a claim upon which relief may be
granted.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s application to proceed in district
court without prepaying fees and costs is GRANTED. (Doc. 2)
IT IS FURTHER ORDERED that the Plaintiff shall pay an initial filing fee
of $24.75 within thirty (30) days of the date of this Order. Plaintiff is instructed to
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make her remittance payable to “Clerk, United States District Court,” and to include
upon it: (1) her name; (2) her 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 against Defendant Mary
Lemons are DISMISSED without prejudice for failure to state a claim upon which
relief may be granted.
IT IS FURTHER ORDERED that Plaintiff’s motion to appoint counsel is
DENIED as moot. (Doc. 3)
An Order of Dismissal will accompany this Opinion, Memorandum and
Order.
Dated this 11 th day of February, 2026.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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