Willis v. Mulcahy et al

Filing 8

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is DISMISSED without prejudice. An Order of Dismissal will be filed separately. Signed by District Judge John A. Ross on 1/19/2015. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

WILLIE WILLIS,
Plaintiff,

v.
JAMES MULCAHY, et al.,
Defendants.

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No. 1:15CV168 JAR

MEMORANDUM AND ORDER

This matter is before the Court on review of plaintiffs second amended complaint under
28 U.S.C. § 1915(e). The Court finds that the amended complaint fails to state a claim upon
which relief can be granted. As a result, this action is dismissed.
Standard of Review

Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief under § 1983, a complaint must plead more than "legal conclusions"
and "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a "mere possibility of misconduct."

Id. at 679. "A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Id. at 678. Determining whether a complaint states a plausible claim for relief [is] a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.

Discussion
Plaintiffs first complaint was defective because it was not filed on the Court's form and
because he did not seek leave to proceed in forma pauperis. Upon review, the Court ordered
plaintiff to submit an amended complaint. In its Order, the Court instructed plaintiff that he must
specifically state whether he intends to sue defendants in their official capacities.

In his amended complaint, plaintiff did not specify whether he intends to sue defendants
in their individual or official capacities. The Court noted that where a plaintiff fails to state what
capacity he intends to sue defendants, the Court must construe the complaint as including
official-capacity claims only. See Egerdahl v. Hibbing Community College, 72 F.3d 615, 619
(8th Cir. 1995). As a result, the Court directed plaintiff to submit a second amended complaint.
The Court again instructed plaintiff that he must state whether he intends to sue defendants in
their official capacities. The Court also warned plaintiff that his second amended complaint
must contain each and every one of his claims and that any omitted claims would be considered
abandoned.
In his second amended complaint, plaintiff failed to include any factual allegations about
his medical problems for which he claims he was denied treatment. Further he failed to specify
whether he intends to sue defendants in their official capacities.

Defendants are municipal

employees. Defendants cannot be sued in their official capacities unless plaintiff alleges that a
policy or custom of a governmental entity is responsible for the alleged constitutional
deprivation. Monell v. Dep't of Social Services, 436 U.S. 658, 690-91 (1978). Plaintiff has not
made any such allegations. As a result, the amended complaint fails to state a claim upon which
relief can be granted.
Accordingly,

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IT IS HEREBY ORDERED that this action is DISMISSED without prejudice.
An Order of Dismissal will be filed separately.
Dated this 19th day ofNovember, 2015.~

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A. ROSS
TED STATES DISTRICT JUDGE