Franklin v. Mosley et al

Filing 54

MEMORANDUM AND ORDER/ORDER APPOINTING ATTORNEY Felicia R. Williams for Christopher Franklin, IT IS HEREBY ORDERED that defendant's motion for summary judgment [Doc. # 47 ] is denied without prejudice. IT IS FURTHER ORDERED that plainti ff shall have until July 1, 2013 to file an amended complaint that specifies the capacity in which the defendant is being sued. IT IS FURTHER ORDERED that Felicia R. Williams, Thompson Coburn, LLP, One US Bank Plaza, St. Louis, Missouri 63101-1693, [phone], is appointed to represent plaintiff in this matter. IT IS FURTHER ORDERED that the appointment of Malaine P. Hagemeier and McIlroy and Millan is terminated. ( Response to Court due by 7/1/2013.), Attorney Felicia R. Williams for Christopher Franklin added. Attorney Dean R. Gallego and Malaine P. Hagemeier terminated., ( Response to Court due by 7/1/2013.). Signed by District Judge Carol E. Jackson on 6/18/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHRISTOPHER FRANKLIN,

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Plaintiff,
vs.
JAMES O. REED, et al.,
Defendants.

Case No. 4:11-CV-1606 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendant Jeffrey Young for
summary judgment. Plaintiff responded in opposition to the motion for summary
judgment, and the issues are fully briefed. For the reasons discussed below, the
motion will be denied.
I. Background
Plaintiff initiated this lawsuit pro se, pursuant to 42 U.S.C. § 1983. In the
original complaint, plaintiff alleged that defendant Young, a corrections officer, and
other state officials failed to protect him from sexual assaults by inmates while plaintiff
was confined in the Farmington Correctional Center. Among other things, plaintiff
alleges that Young and the others knew of a safety threat posed by an inmate named
Charles Mosley, yet they allowed Mosley to enter plaintiff’s cell and sexually assault
plaintiff. In the caption of the complaint, plaintiff wrote that all of the defendants were
being sued in their individual capacity.
On November 29, 2011, counsel was appointed to represent plaintiff. On
January 20, 2012, defendant filed a motion to dismiss the pro se complaint, asserting
qualified immunity and failure to state a claim.

Plaintiff’s counsel did not file a

response to the motion. On January 24, 2012, defendant filed a motion for summary

judgment, asserting failure to exhaust administrative remedies. Plaintiff’s counsel did
respond to the summary judgment motion. Both motions were denied; however, the
Court ruled that the plaintiff’s request for injunctive relief was moot.
On October 9, 2012, plaintiff’s counsel filed an amended complaint.

The

amended complaint does not state that the defendants were being sued in their
individual capacity.
On March 5, 2013, plaintiff’s counsel moved for the dismissal without prejudice
of all defendants except Young, pursuant to Fed. R. Civ. P. 41(a)(2). In support of the
motion, counsel wrote, “Following Discovery, and in the interest of judicial economy,
there are several Defendants against whom Plaintiff does not believe he can make a
submissible case.” [Doc. # 49]. The motion was granted.
On March 12, 2013, plaintiff’s counsel moved to modify the case management
order to extend the deadlines for discovery and filing dispositive motions. [Doc. #45].
Although more than a year had elapsed since being appointed, plaintiff’s counsel had
not yet deposed defendant Young. The Court denied the motion, because the
requested extension would not allow adequate time for review of dispositive motions
prior to trial and because plaintiff’s counsel did not explain why the time originally
allotted for discovery was insufficient. [Doc. #46].
II. Discussion
A. Summary judgment motion
The present motion for summary judgment was filed on April 16, 2013. As
discussed above, the original pro se complaint specified that Young was being sued in
his individual capacity. The amended complaint supersedes the original complaint and
makes no mention of capacity. In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th
Cir. 2000) The linchpin of the summary judgment motion is that, because of the
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omission of capacity, the amended complaint must be interpreted as an action against
the defendant in his official capacity. See Johnson v. Outboard Marine Corp., 172 F.3d
531, 535 (8th Cir. 1999) (“[I]n order to sue a public official in his or her individual
capacity, a plaintiff must expressly and unambiguously state so in the pleadings,
otherwise, it will be assumed that the defendant is sued only in his or her official
capacity. . . Absent such an express statement, the suit is construed as being against
the defendants in their official capacity.”). The defendant correctly argues that because
of the Eleventh Amendment, plaintiff cannot recover money damages against a state
official acting in his official capacity.

See Hafer v. Melo, 502 U.S. 21, 27 (1991)

(“State officers sued for damages in their official capacity are not ‘persons’ for
purposes of the suit [under §1983] because they assume the identity of the
government that employs them.”); Will v. Michigan Dept. of State Police, 491 U.S. 58,
71; 67-68 (1989) (a claim for damages against a state officer in his official capacity
is “no different from a suit against the State itself,” and is precluded by the doctrine
of sovereign immunity).
Plaintiff’s counsel has responded to the motion for summary judgment.
However, the response does not address the official capacity/Eleventh Amendment
issue, and there has been no request for leave to cure this pleading deficiency.
The pro se complaint makes it clear that plaintiff intended to sue the defendant
in his individual capacity. Thus, the Eleventh Amendment issue would not have arisen
but for the failure of plaintiff’s counsel to specify the defendant’s capacity in the
amended complaint. The Court made the decision to appoint counsel for the plaintiff
because it believed that doing so was in the interest of justice. Now the Court believes
it would not be in the interest of justice to deny plaintiff the opportunity to pursue his
case simply because of the error of appointed counsel.
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Therefore, instead of

dismissing this case, the Court will give plaintiff the opportunity to amend the
complaint for the sole purpose of specifying the capacity in which the defendant is
being sued. The Court believes that defendant will not be prejudiced, as plaintiff’s
intention to sue the defendant in his individual capacity was evident at the inception
of this case.
B. Appointment of new counsel
As noted above, plaintiff’s counsel failed to respond to a motion to dismiss and
failed to address the critical issue of Eleventh Amendment immunity in response to the
summary judgment motion. Additionally, plaintiff’s counsel did not take the deposition
of defendant Young, whose alleged conduct figures prominently in the case.1 These
matters have caused the Court to question whether plaintiff’s counsel are committed
to fulfilling the obligation they undertook when they accepted the appointment.
To resolve this doubt, new counsel will be appointed to represent the plaintiff
in this case. In addition to filing an amended complaint, new counsel may request
additional time to complete discovery.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion for summary judgment
[Doc. #47] is denied without prejudice.
IT IS FURTHER ORDERED that plaintiff shall have until July 1, 2013 to file
an amended complaint that specifies the capacity in which the defendant is being
sued.

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Attached to the response to the summary judgment motion are documents which
purport to show that plaintiff told Young of his fear of sexual assault by Mosley but
Young took no action.

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IT IS FURTHER ORDERED that Felicia R. Williams, Thompson Coburn,
LLP, One US Bank Plaza, St. Louis, Missouri 63101-1693, [phone], is
appointed to represent plaintiff in this matter.
IT IS FURTHER ORDERED that the appointment of Malaine P. Hagemeier and
McIlroy and Millan is terminated.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 18th day of June, 2013.

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