Richardson v. Payne et al

Filing 27

ORDER approving and adopting 25 Recommended Disposition in its entirety as this Court's findings and conclusions in all respects except as stated in this Order; giving Ms. Richardson 45 days to file a Third Amended Complaint; directing the Cle rk to send Ms. Richardson a blank section 1983 complaint form; granting in part 19 Motion to Dismiss; dismissing, without prejudice, Plaintiff's claims; and granting leave for the filing of a Third Amended Complaint. Signed by Judge Lee P. Rudofsky on 8/28/2024. (ldb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
ANGELA SCHUNCEY RICHARDSON
ADC #712575
v.

PLAINTIFF

No. 4:22-cv-00160-LPR

JOHN HERRINGTON

DEFENDANT
ORDER

The Court has reviewed the Recommended Disposition (RD) submitted by United States
Magistrate Judge Patricia S. Harris (Doc. 25) and the Plaintiff’s Objections (Doc. 26). After a de
novo review of the RD, along with careful consideration of the Objections and the entire case
record, the Court hereby approves and adopts the RD in its entirety as this Court’s findings and
conclusions in all respects except as stated below.
The RD and the Defendant are technically correct that: (1) Ms. Richardson’s operative
Complaint does not state whether she is suing Mr. Herrington in his personal capacity, his official
capacity, or both; (2) in such circumstances, the law requires that the Complaint be read to state
only official capacity claims; and (3) official capacity claims are appropriately dismissed here. So,
the Court agrees that the Motion to Dismiss should be granted. But that is not the end of the story.
The Court notes that Ms. Richardson is proceeding pro se. The Court also notes that, based on the
various prior twists and turns in this case, Ms. Richardson has at least a plausible excuse for
assuming that her operative Complaint would be understood as bringing personal capacity claims
against Mr. Harrington. Therefore, the Court gives Ms. Richardson 45 days to file a Third
Amended Complaint.
This will be Ms. Richardson’s last chance to amend her Complaint at this stage of the
proceedings. The Clerk is directed to send Ms. Richardson a blank section 1983 complaint form.

Ms. Richardson is warned—once again—that a new Complaint will entirely supersede and replace
all earlier Complaints. Accordingly, with respect to the content of a Third Amended Complaint,
Ms. Richardson is warned that she must—at the very least—include all the facts, allegations, and
narrative that she included in her Second Amended Complaint (relative to the December 2019
retaliation claim). And Ms. Richardson should indicate if she is suing Mr. Herrington in his
personal capacity.
If Ms. Richardson does not properly file a Third Amended Complaint, a judgment of
dismissal will be entered. If Ms. Richardson does properly file a Third Amended Complaint, Mr.
Herrington may in the usual course file another Motion to Dismiss, based on the arguments in his
prior Motion to Dismiss or any other arguments he wishes to air. The Magistrate Judge will have
the first crack at recommending a resolution to such Motion.
As, and for the reasons, stated above, Defendant Herrington’s Motion to Dismiss (Doc. 19)
is GRANTED IN PART. Plaintiff’s claims are DISMISSED without prejudice for failure to state
a claim upon which relief may be granted. But leave is granted for the filing of a Third Amended
Complaint.
IT IS SO ORDERED this 28th day of August 2024.
_______________________________
LEE P. RUDOFSKY
UNITED STATES DISTRICT JUDGE