Joshua M. Divine
How Judge Divine decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
On § 1915(e) screening of failure-to-protect claims, distinguishes deliberate indifference (which can proceed) from negligence/policy violations (which cannot). Officers told of a specific risk who do nothing can be sued; officers who merely failed to do rounds, or who acted on the information, cannot. Plead actual knowledge plus conscious disregard.
“violations of prison policy or regulations alone are not enough to establish deliberate indifference under the Eighth Amendment.”
Treats a controlling Eighth Circuit ruling on the same complaint as binding at the screening stage even where he signals doubt (e.g., on whether the risk was 'isolated' vs. pervasive). Cite favorable appellate language on your own pleadings.
“So at this early stage of frivolity review, the Court is bound by the Eighth Circuit’s conclusion about Mills’s complaint.”
In excessive-force qualified-immunity cases, methodically walks through each Graham factor (severity of crime, immediate threat, resistance/flight) and credits an officer's knowledge of a suspect's recent criminal history and noncompliance heavily. A suspect's failure to comply with repeated 'get on the ground' commands is passive resistance that justifies escalated force, even where the suspect claims he was not actively resisting.
“The failure to follow police instruction may constitute passive resistance.”
On qualified immunity, will resolve a genuinely disputed material fact (e.g. whether the officer used a baton or a fist) by assuming the plaintiff's version is true, then still grant summary judgment if that version does not establish unreasonable force -- do not expect a fact dispute alone to defeat a qualified-immunity summary-judgment motion.
“Accepting Buskuehl’s version of the facts as true for this qualified-immunity analysis, Buskuehl’s claim still fails because Howell’s use of force was constitutionally reasonable.”
Procedural preferences
On de novo review of a magistrate's R&R, will adopt the result but prune reasoning he finds 'premature and unnecessary' (here, declining to rule on a state statute's constitutionality and deciding on narrower, applicability grounds). Expect minimalist, avoid-the-constitutional-question rulings.
“That constitutional determination is both premature and unnecessary.”
Discovery motions filed before a case management order issues are premature and will be denied without prejudice; renew them only after discovery opens and per the presiding judge's standing orders. Defendants are reminded of their evidence-preservation duty.
“Mills’s motions are premature. The Court has not yet issued a case management order or authorized discovery in this case.”
In habeas cases, prefers to decide on equitable-discretion grounds (whether 'law and justice require' relief) rather than reach the statutory AEDPA elements when a petitioner shows no colorable claim of factual innocence -- an efficient, merits-avoiding path to denial that leaves the statutory arguments unaddressed.
“This Court need not assess both sets of requirements. ... If a prisoner cannot persuade the Court to exercise equitable discretion to grant habeas relief, the analysis need extend no further.”
At sentencing, will reject a jointly-recommended below-Guidelines sentence he finds too lenient to satisfy the statutory deterrence/respect-for-law factors, and will solicit supplemental briefing before doing so rather than deviate from the joint recommendation without notice. Expect him to weigh general-deterrence and rule-of-law considerations independently of what the parties negotiated, while still crediting acceptance of responsibility.
“That is too low. The Court is required by statute to impose a sentence high enough to deter illegal immigration offenses and promote respect for the rule of law.”
Cautions
Enforces compliance with court orders and Local Rules even for pro se litigants: failing to file an ordered amended complaint, and filing leave-to-amend motions without attaching the proposed pleading (L.R. 4.07), leads to Rule 41(b) dismissal. Follow the form/order requirements.
“Ware’s self-represented status does not eliminate the obligation to follow court orders, the Federal Rules of Civil Procedure, or this Court’s Local Rules.”
Supervisory and official-capacity § 1983 claims fail without specific, non-conclusory allegations of personal participation or a policy/custom; naming a director/warden 'responsible for subordinates' is not enough.
“Because Mills has alleged no factual content to support any allegations of a failure to train, the Court will dismiss his claims against defendants Precythe, Adams, Lewis, Freeman, Tandarich, and Wheeler.”
Has little patience for pleadings that show hallmarks of sovereign-citizen-style argument (notarizing routine filings, 'without recourse' language, self-description as a 'living man,' a scattershot litany of banking/RICO statutes) and will summarily dismiss for lack of subject-matter jurisdiction without engaging each cited statute in detail.
“[I]t is well-established in the Eighth Circuit that arguments based on sovereign citizen ideology are inherently frivolous, and should be summarily dismissed as a waste of judicial resources.”
Will raise subject-matter jurisdiction sua sponte even where every party agrees jurisdiction exists and no one has briefed the issue (here, in a true-bill interpleader action where all parties assumed diversity jurisdiction applied). Do not assume unopposed jurisdictional allegations will go unexamined.
“Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.”
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“The Court, having reviewed de novo the report and recommendation from United States Magistrate Judge Joseph S. Dueker, DENIES all pro se Defendant Roosevelt Easley’s motions addressed in that report as well as his subsequent motion to supplement the record.”
“IT IS FURTHER ORDERED that Mills’s motion to appoint counsel is DENIED without prejudice. ECF 44.”
“IT IS FURTHER ORDERED that Mills’s motions seeking discovery are DENIED without prejudice. ECF 40, 41, 43, 48, and 49.”
“IT IS FURTHER ORDERED that Mills’s amended motions for leave to appeal in forma pauperis are DENIED as moot. ECF 34 and 39.”
“IT IS FURTHER ORDERED that all pending motions are DENIED as moot.”
“IT IS HEREBY ORDERED that the motion to dismiss is denied in part and granted in part. Counts Two through Five are DISMISSED. Count One is DISMISSED as to the City of Berkeley and Officer Conway in the officer’s official capacity, but survives as to Officer Conway in Conway’s individual capacity. To the extent it exists as a separate claim, Count Six is also DISMISSED.”
“IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel, Doc. [4], is DENIED without prejudice.”
“Ware’s objections (Doc. 84) are overruled, the parts of Judge Cohen’s report and recommendation (Doc. 81) that have been challenged are adopted, and Ware’s motion to suppress (Doc. 45) and motion for an additional hearing (Doc. 88) are denied.”
“IT IS HEREBY ORDERED that Hurst’s petition for writ of habeas corpus, ECF 1, is DENIED. A separate order of dismissal shall accompany this memorandum and order.”
True-bill interpleader action over a $400,000 servicemembers' life-insurance payout where the named beneficiary is a suspect in the insured's killing. Divine held the Court lacked both diversity jurisdiction (the disinterested-stakeholder's citizenship is disregarded; all real claimants are Missouri citizens) and federal-question jurisdiction (no express or implied cause of action under the governing statute) and dismissed the case sua sponte for lack of subject-matter jurisdiction, denying the pending motion for default judgment as moot.
“IT IS HEREBY ORDERED that Phillips’s motion to proceed in forma pauperis, ECF 2, motion for appointment of counsel, ECF 3, and motion for summary judgment, ECF 9, are DENIED.”
“The Court DENIES Carter’s petition for writ of habeas corpus, ECF 1. A separate order of dismissal shall accompany this memorandum and order.”
“The Court also DENIES as moot (1) his motion for leave to proceed in forma pauperis, ECF 2, and (2) his motion to appoint counsel, ECF 3.”
Sua sponte Rule 41(b) dismissal for failure to comply with a court order: plaintiff never paid the filing fee or moved for IFP status after being ordered to do so, with ample opportunity to comply. No party motion; dismissal without prejudice.
“IT IS HEREBY ORDERED that Suarez’s petition for a writ of habeas corpus, ECF 1, is DENIED. The Clerk of the Court shall serve a copy of the petition and this order on the respondents.”
Caseload & timing
From public federal docket records for this judge.
Median motion-to-ruling time: 201 days (N = 9).
The docket has not been systematically enumerated. The nine grounded motions below span six dockets: two inherited pro se prisoner/civil-rights cases from predecessor judges (Mills v. Precythe/Berger; Ware v. Missouri DOC, where the IFP rulings were signed by a magistrate and only the Rule 41(b) dismissal is Divine's), one inherited products-liability removal case dismissed on the plaintiff's own voluntary-dismissal notice (Hiedger v. Coca-Cola), one inherited employment-discrimination/whistleblower case that went all the way to a Divine-signed summary-judgment ruling on the eve of trial (Payeur v. Boeing), and one inherited employment collective action compelled to arbitration and administratively closed (Crafton/Hicks v. SSM Health Care). His published orders separately cover an excessive-force civil-rights summary judgment (Buskuehl v. Howell), a hostile-work-environment motion-to-dismiss denial (Summers v. Union Pacific), a foreclosure/sovereign-citizen dismissal, an interpleader jurisdictional dismissal, several pro se habeas/§1983 screening and dismissal orders, a criminal suppression ruling, a detention-authority opinion, and a sentencing opinion -- together painting an early docket that is heavy on pro se prisoner and habeas matters but also includes ordinary inherited civil litigation reaching final disposition under him.
Put Judge Divine's record to work
Ezel drafts and answers grounded in this exact profile: how Judge Divine actually rules, not a generic AI guess.
Opens in Ezel Pro. Every answer is grounded in Judge Divine's own signed orders and cites them.