Richman v. Wallace

Filing 58

MEMORANDUM AND ORDER re: 51 MOTION to Dismiss Case filed by Defendant Missouri Department of Corrections, 56 MOTION for Preliminary Injunction filed by Plaintiff John A. Richman. IT IS HEREBY ORDERED that defendant's motion t o dismiss plaintiff's fourth amended complaint [Doc. #51] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall provide plaintiff with a Prisoner Civil Rights Complaint form. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on a court provided form no later than thirty (30) days from the date of this Memorandum and Order. IT IS FURTHER ORDERED that plaintiff's motion for preliminary injunction [Doc. #56] is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that if pl aintiff fails to file an amended complaint within thirty (30) days of the date of this Memorandum and Order, this case will be dismissed. (Amended/Supplemental Pleadings due by 9/13/2017.) Signed by District Judge Stephen N. Limbaugh, Jr on 8/14/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JOHN A. RICHMAN,

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Plaintiff,
v.
MISSOURI DEPT. OF CORR.,
Defendant.

No. 1:15-CV-63 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion to dismiss plaintiff’s third
amended complaint. Also before the Court is plaintiff’s motion for preliminary injunction.
Defendant’s motion to dismiss will be granted. However, plaintiff will be granted leave to file
an amended complaint. Plaintiff’s motion for preliminary injunction will be denied without
prejudice.
Background
Plaintiff, John Richman, is presently incarcerated at Algoa Correctional Center. Before
being relocated, plaintiff was an inmate at Eastern Reception, Diagnostic and Correctional
Center (“ERDCC”) and Southeastern Correctional Center (“SECC”).
The following facts, as taken from the third amended complaint, are presumed true for
the purpose of the pending motion to dismiss.
In his third amended complaint against defendant the Missouri Department of
Corrections (“MDOC”), plaintiff seeks injunctive relief for a state-wide policy that plaintiff
believes denies him equal protection under the 14th Amendment.

Plaintiff claims that MDOC policy IS22-1.1, a policy implemented and enforced by
MDOC prison wardens across the state, denies he and others like him, property paid by each
inmate at the prison commissary and, in essence, gives each inmate a “double punishment” after
that inmate is given a conduct violation.
Plaintiff states that inmates who own “grandfathered property” as defined by the policy,
but who have never received: (1) conduct violations (“CDVs”); (2) transfers for negative
behavior; (3) custody elevations due to accumulations for CDVs; or (4) violations for being
placed in administrative segregation, do not lose their “grandfathered property” when it is broken
and they have to send it outside the prison to have it fixed.
However, those inmates who have these negative accumulations on their records and
have broken “grandfathered property” do lose their “grandfathered property” if it is broken and
needs to be fixed. Plaintiff calls this a “double punishment” and a restriction on his right to
property. Plaintiff asserts that this treatment under policy IS22-1.1 bears no rational relationship
to any penological interest.
In its motion to dismiss presently before the Court, defendant MDOC does not address
the substance of plaintiff’s allegations, but instead insists that plaintiff’s third amended
complaint is subject to dismissal because “the suit is barred by the Eleventh Amendment to the
U.S. Constitution.”
Presently before the Court is plaintiff’s fifth motion for preliminary injunction for
retaliation, in violation of the First Amendment. [Doc. #56]
Plaintiff’s Motion for Preliminary Injunction
In his motion for preliminary injunction, plaintiff asserts that a month after this Court
issued process on plaintiff’s third amended complaint, on September 8, 2016, plaintiff was

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subjected to a surprise urinalysis at ERDCC. Prior to the urinalysis, just two days after the Court
issued process on his complaint, plaintiff filed a request with MDOC to be transferred to
Farmington Correctional Center in order to be transferred to the “pre-release work program.”
Plaintiff claims that this was the first urinalysis he was given “in years” and he objected
to the request because he was not given a reason for the request. Plaintiff alleges that his
urinalysis came back showing “no drugs in the urine sample.” However, he was still issued a
conduct violation because he was told the urine was “diluted” and then placed in Administrative
Segregation, issued 180 days work restriction and prevented from transferring to Farmington for
work release. Plaintiff was also referred to probation and parole for revocation of plaintiff’s
release date.
Plaintiff asserts that defendant’s conduct was done in retaliation for his lawsuit. Plaintiff
asks the Court to deny defendant’s motion to dismiss and he asks the Court to require defendant
to rescind all sanctions given to plaintiff. Plaintiff also requests damages for his time spent in
Administrative Segregation.
In effect, plaintiff asks to amend his complaint to include a First Amendment retaliation
claim. Defendant has not responded to plaintiff’s motion.
Legal Standard
In ruling on a motion to dismiss, the Court must view the allegations in the complaint in
the light most favorable to the plaintiff. See Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th
Cir. 2008). The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency
of the complaint. Thus, the issue is not whether the plaintiff will ultimately prevail, but instead is
whether the plaintiff is entitled to present evidence in support of his claim. See Fed. R. Civ.
12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-556 (2007). A viable complaint must

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contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570. However, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). With these principles in mind, the Court turns to the discussion.
Discussion
The issue before the Court is whether plaintiff can bring a case against defendant in this
action. As noted above, although plaintiff has brought this case against MDOC in the caption of
his third amended complaint, he alleges that MDOC policy IS22-1.1 is implemented and
enforced by MDOC prison wardens across the state of Missouri in a discriminatory manner.
Defendant is correct that MDOC is not the proper party in interest in this action. See Will v.
Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). However, in light of plaintiff’s motion
for preliminary injunction and the following case law, the Court will allow plaintiff to file a
fourth amended complaint in order to name the real party in interest, the Direct of the Missouri
Department of Corrections, Anne L. Precythe.
To “state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).1
Here, plaintiff alleges that he has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment as a result of policies
implemented across MDOC prisons by defendant MDOC Director Anne L. Precythe.
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In order to proceed with an equal protection claim, plaintiff, who is not a member of a suspect
class, must allege that he has been intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment. See Village of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000); Brown v. Kempker, 55 Fed.Appx 388 (8th Cir. 2002).
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To state a claim under Section 1983, “plaintiff must plead that a government official has
personally violated the plaintiff's constitutional rights.” Jackson v. Nixon, 747 F.3d 537, 543 (8th
Cir.2014) (citing Iqbal, 556 U.S. at 676). Although “the doctrine of respondeat superior does not
apply to § 1983 cases, a supervisor may still be liable under § 1983 if either her direct action or
her ‘failure to properly supervise and train the offending employee’ caused the constitutional
violation at issue.” Jackson, 747 F.3d at 543 (quoting Tlamka v. Serrell, 244 F.3d 628, 635 (8th
Cir.2001) and Crooks v. Nix, 872 F.2d 800, 804 (8th Cir.1989)). In addition, the Eighth Circuit
has held that:
The authority of the state DOC director to make prison-wide policy decisions may
be sufficient to give rise to liability under § 1983. We have found a DOC director
may be “responsible for [her] own failure to act,” based on [her] statutory duty to
administer the Department of Corrections and “supervise the administration of all
institutions, facilities and services under the Department's jurisdiction” and [her]
authority to change the challenged policies. Messimer v. Lockhart, 702 F.2d 729,
732 (8th Cir.1983) (quoting Ark. Stat. Ann. § 46–105(a) (1977)). Moreover, an
allegation that the DOC director authorized an unconstitutional policy may be
sufficient to state a claim “for actions allegedly taken directly by” the director.
Cooper v. Schriro, 189 F.3d 781, 784 (8th Cir.1999). Under Missouri law, “[t]he
general supervision, management and control of the department of corrections
shall be in the director of corrections.” Mo.Rev.Stat. § 217.025(1) (2013). As
such, [the] MDOC Director ... is required to “establish the duties and
responsibilities of employees of the department” and “supervise their work
assignments.” Mo.Rev.Stat. § 217.025(3) (2013). [She] is “responsible for the
implementation of uniform policies and procedures governing offenders and
staff,” and [she] must “make and enforce such rules, regulations, orders and
findings as the director may deem necessary for the proper management of all
correctional centers and persons subject to the department's control.”
Mo.Rev.Stat. §§ 217.025(3), (6) (2013).
Jackson, 747 F.3d at 544. Thus, it appears that the Eighth Circuit countenances an individualcapacity § 1983 claim against a prison system director for authorizing an unconstitutional policy
or procedure in a manner that suggests respondeat superior is allowed in some narrow way.
As such, the Court will grant defendant’s motion to dismiss, but will also allow plaintiff
thirty (30) days to file a fourth amended complaint to encompass his claims against Director
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Precythe. Plaintiff’s motion for preliminary injunction will be denied, without prejudice, at this
time, as plaintiff’s claims in his motion for preliminary injunction should be included in his
amended complaint. To the extent plaintiff wishes to include his retaliation claims in his
amended complaint, he must clearly state the person or persons he wishes to sue, whether he is
suing the individual or individuals in their official or individual capacities, and state clearly and
concisely the claims he is bringing against those individuals and the relief he is seeking.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion to dismiss plaintiff’s fourth
amended complaint [Doc. #51] is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall provide plaintiff with a Prisoner Civil
Rights Complaint form.
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on a court
provided form no later than thirty (30) days from the date of this Memorandum and Order.
IT IS FURTHER ORDERED that plaintiff’s motion for preliminary injunction [Doc.
#56] is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that if plaintiff fails to file an amended complaint within
thirty (30) days of the date of this Memorandum and Order, this case will be dismissed.
Dated this 14th day of August, 2017.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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