Hill v. Kempker et al

Filing 14

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that plaintiffs motion to release account statement [Doc. #4] is DENIED AS MOOT as the initial partial filing fee has been paid.IT IS FURTHER ORDERED that plaintiff's motion for extension of time to pay the filing fee [Doc. #12] is DENIED AS MOOT as the initial partial filing fee has been paid. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue on plaintiffs official capacities claims against defendants because t hese claims are legally frivolous or fail to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue on plaintiff's individual capacity claims against defendants Dewayne Kempker, Ian Wallace and Paula Reed in accordance with the waiver agreement this Court maintains with the Missouri Attorney General's Office. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants shall reply t o plaintiff's claims within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that at the time defendants file their answer or responsive pleading in this matter, they shall file a response to plaintiffs motion for temporary restraining order [Doc. #3] IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard.. Signed by District Judge Stephen N. Limbaugh, Jr on 12/7/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
THEODIS HILL,
Plaintiff,
v.
DEWAYNE KEMPKER, et al.,
Defendants.

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No. 1:15CV162 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon plaintiff’s motion to amend his complaint by
interlineation. Plaintiff states in his motion that he wishes to sue defendants Dewayne Kempker,
Ian Wallace, and Paula Reed, in both their individual and official capacities. For the reasons
stated below, the Court will dismiss plaintiff’s allegations against defendants in their official
capacities and request that the Clerk of Court issue service against defendants on plaintiff’s
claims as to defendants in their individual capacities.
Procedural and Factual Background
Plaintiff, Theodis Hill, an inmate at Southeast Correctional Center (“SECC”), brings this
action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Named as defendants
are: Dewayne Kempker, Ian Wallace and Paula Reed.
Plaintiff claims that more than a year ago, during his present incarceration at SECC, he
was placed in solitary, or “single-cell Ad-Seg”, confinement, after being found guilty of a verbal
threat to another inmate. Plaintiff has submitted evidence attached to his complaint that he has
grieved his single-cell assignment to all three defendants, but that he has not been released from
such confinement.

Plaintiff has also submitted evidence that his “single-cell Ad-Seg”

confinement has been extended for another 12-month time period.

In his complaint, plaintiff appears to be alleging that he has been denied the proper
meaningful review process by defendants, and he also claims that he has been subjected to
“retaliation” in the assignment process because of his race and because of defendants’ dislike of
him personally. Plaintiff also alleges that he has been subjected to cruel and unusual punishment
by continuing to expose him to solitary confinement for the past year, along with the removal of
his canteen, phone and property privileges.
Because plaintiff failed to allege the capacity under which he was suing defendants in this
action, the Court required plaintiff to amend his complaint, by interlineation. Plaintiff filed an
amendment indicating he was asserting claims against defendants in both their individual and
official capacities. In his complaint, plaintiff seeks an order directing defendants to release him
from solitary confinement, as well as compensatory and punitive damages against each
defendant.
Discussion
Defendants are employees of the Missouri Department of Corrections. Naming a
government official in his or her official capacity is the equivalent of naming the government
entity that employs the official, in this case the State of Missouri. Will v. Michigan Dep=t of State
Police, 491 U.S. 58, 71 (1989). “[N]either a State nor its officials acting in their official capacity
are >persons= under § 1983.” Id. As a result, plaintiff’s claims against defendants in their official
capacity fail to state a claim upon which relief may be granted and are subject to dismissal.
Plaintiff’s claims against defendants in their individual capacities, however, survive
review under 28 U.S.C. § 1915, as plaintiff’s allegations in his complaint are enough to state a
due process claim under the Eighth Amendment, see Williams v. Norris, 277 Fed. Appx. 647,
648-49 (8th Cir. 2008 ) (noting that an extended duration in administrative segregation could
implicate an inmate’s liberty interest in due process); see also Davis v. Ayala, 135 S.Ct. 2187

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(2015) (concurrence by Justice Kennedy noting that confinement in a prison or in an isolation
cell is a form of punishment subject to scrutiny under the Eighth Amendment); Wilkinson v.
Austin, 545 U.S. 209, 223-24, 229 (2005) citing Hewitt v. Helms, 459 U.S. 460, 473-76 (1983).
The Court also believes that plaintiff has stated a claim for lack of meaningful review
under the due process clause of the Eighth Amendment, as well as for cruel and unusual
punishment. See Kelly v. Brewer, 525 F.2d 394-400 (8th Cir. 1975) (where inmate is held in
administrative segregation for prolonged or indefinite period, due process requires that his
situation be reviewed periodically in a meaningful way; administrative segregation is not
punitive, it looks to present and future rather than to past, and it involves exercise of
administrative judgment and prediction of what inmate will probably do or have done to him if
he is permitted to return to population after a period of segregation; reason for segregation must
not only be valid at outset but must continue to subsist during period of segregation).
As such, the Court will order the Clerk to issue process on plaintiff’s Eighth Amendment
claims, pursuant to the Court’s waiver agreement with the Missouri Attorney General’s Office.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to release account statement [Doc.
#4] is DENIED AS MOOT as the initial partial filing fee has been paid.
IT IS FURTHER ORDERED that plaintiff’s motion for extension of time to pay the
filing fee [Doc. #12] is DENIED AS MOOT as the initial partial filing fee has been paid.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue on plaintiff’s official capacities claims against defendants because these claims are legally
frivolous or fail to state a claim upon which relief can be granted, or both.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to
issue on plaintiff’s individual capacity claims against defendants Dewayne Kempker, Ian

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Wallace and Paula Reed in accordance with the waiver agreement this Court maintains with the
Missouri Attorney General’s Office.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants
shall reply to plaintiff's claims within the time provided by the applicable provisions of Rule
12(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that at the time defendants file their answer or responsive
pleading in this matter, they shall file a response to plaintiff’s motion for temporary restraining
order [Doc. #3]
IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard.
An Order of Partial Dismissal will accompany this Memorandum and Order.
Dated this 7th day of December, 2015.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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