Dicks v. McSwain et al

Filing 18

ORDER OF DISMISSAL pursuant to 28USC1915(e)(2)(B) IT IS HEREBY ORDERED that plaintiff's complaint is DISMISSED, without prejudice. Signed by District Judge Stephen N. Limbaugh, Jr on 9/12/12. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
KEITH EDWARD DICKS,
Plaintiff,
v.
ELLIS McSWAIN, et al.,
Defendants.

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No. 1:12CV100 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on sua sponte review of plaintiff’s second
amended complaint. Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss
a complaint filed in forma pauperis if the action is frivolous, malicious, fails to state
a claim upon which relief can be granted, or seeks monetary relief from a defendant
who is immune from such relief. Having reviewed the complaint, the Court finds that
the action fails to state a claim upon which relief can be granted, and the Court will
dismiss the action without further proceedings.
Plaintiff brings this action under 42 U.S.C. § 1983. Defendants, who are state
officials, “are being sued in their official capacities, not as individuals.” The factual
allegations in the complaint have been set out twice before by the Court, in its Orders
dated June 28, 2012, and August 27, 2012. So, the Court will not set them out fully
here. In summary, plaintiff alleges that his Fifth Amendment right to be free from

self-incrimination was violated because defendants used statements he made under
duress of employment termination to cause a criminal action to be opened against him
without giving him the proper warning.
Plaintiff reviewed the original complaint on June 28, 2012, and found that it
stated a claim against defendants Gina Cook and Caroline Coulter. The Court
dismissed plaintiff’s claims against defendant Ellis McSwain because those claims
were frivolous under 28 U.S.C. § 1915(e).
Plaintiff subsequently moved the Court to reinstate his claims against
McSwain, and he moved the Court in a separate motion to modify his damages
request. The Court entered an Order on August 13, 2012, noting that the Federal
Rules do not allow amendments via interlineation. In its Order, the Court gave
plaintiff the opportunity to file an amended complaint that complied with the Federal
and Local Rules. The Order also gave plaintiff explicit instructions as to how the
complaint should be drafted so that it would comply with the Rules, including
instructions that plaintiff must identify the capacity in which he wished to sue the
defendants.
Plaintiff filed his first amended complaint on August 24, 2012. In reviewing
the amended complaint, the Court found that the complaint failed to state a claim
against the defendants because plaintiff sued them in their official capacities only,
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and in such capacity, defendants were not liable to suit. However, rather than
dismissing the amended complaint, the Court gave plaintiff another opportunity to
amend his complaint, again instructing him as to the pleading requirements of a
§ 1983 action.
Plaintiff’s second amended complaint suffers from the same defect as the first
amended complaint, i.e., plaintiff’s claims against defendants in their official
capacities fail to state a claim under § 1983. See Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 71 (1989) (“neither a State nor its officials acting in their official
capacity are ‘persons’ under § 1983.”). Having given plaintiff explicit instructions
on how to properly plead a claim under § 1983, and having given plaintiff multiple
opportunities to amend, the Court finds that this action should now be dismissed
under 28 U.S.C. § 1915(e).
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED without
prejudice.
Dated this 12th day of September, 2012.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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