Smalley v. Stevens et al

Filing 31

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Plaintiff's Motion for Leave to File an Amended Complaint [ECF No. 30 ] is GRANTED, as set forth above. IT IS HEREBY ORDERED that defendants McGinnis, Love, and McSlynn are DISMISSED from the amended complaint. Signed by District Judge E. Richard Webber on 01/03/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES H. SMALLEY,
Plaintiff,
v.
JOHN W. STEVENS, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 4:12CV00171 ERW

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Leave to File an
Amended Complaint [ECF No. 30]. Plaintiff requests leave to file an amended
complaint because he has learned the name of two John Does, Commander Donna M.
Love and Superior Brian R. McSlynn, who he has added to his proposed amended
complaint as defendants. Aside from the addition of these defendants, the allegations
in the proposed amended complaint are very similar to the original complaint.
Rule 15 of the Federal Rules of Civil Procedure states that “[t]he court should
freely give leave [to amend] when justice so requires.” The Supreme Court has
enunciated the following general standard, which is to be employed under Rule 15(a)
by the district courts:
If the underlying facts or circumstances relied upon by a plaintiff may be
a proper subject of relief, he ought to be afforded an opportunity to test
his claim on the merits. In the absence of any apparent or declared

reason—such as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc.—the leave
sought should, as the rules require, be “freely given.”
Foman v. Davis, 371 U.S. 178, 182 (1962). But see Coleman v. Ramada Hotel
Operating Co., 933 F.2d 470, 473 (7th Cir. 1991) (“Although the federal rules
generally favor a liberal amendment policy, justice does not demand that [a party] be
given leave to append frivolous or repetitive allegations to [his or] her complaint at any
stage in the proceedings.”).
In the proposed amended complaint, plaintiff alleges that defendants Stevens and
McGinnis strip searched him without cause and planted drugs on him, for which he was
arrested and convicted. The Court previously held that plaintiff’s unlawful strip search
claim outside of the car against Stevens stated a plausible claim for relief, and those
claims are currently in the discovery stage. The Court dismissed each of the claims
plaintiff brought against McGinnis because they were Heck-barred. They continue to
be so, and the Court will not revive those claims.
Plaintiff’s claims against defendants Love and McSlynn sound in respondeat
superior. Love and McSlynn cannot be liable for Stevens and McGinnis’s actions
based on respondeat superior. Livers v. Schenck, — F.3d —, 2012 WL 5439300 *12
(8th Cir. Nov. 8 2012). Love and McSlynn may be liable under § 1983 if they (1) had
-2-

notice of a pattern of unconstitutional acts committed by subordinates; (2) were
deliberately indifferent to or tacitly authorized those acts; and (3) failed to take
sufficient remedial action; (4) proximately causing injury to plaintiff. Id. Plaintiff does
not allege sufficient facts that might show that Love and McSlynn had a notice of a
pattern of unconstitutional acts committed by Stevens and McGinnis or that they were
deliberately indifferent to or tacitly authorized such acts and failed to take sufficient
remedial action. As a result, the complaint fails to state a claim against Love and
McSlynn.
Plaintiff also brings a cause of action against Stevens under Mo. Rev. Stat.
§ 544.193.3 for strip searching him in public. This cause of action states a claim under
Missouri law and should be allowed to go forward at this time. The searches of
plaintiff at the police station were not conducted in violation of § 544.193, and
plaintiff’s claims that they did are frivolous.
Having reviewed the amended complaint under § 1915, the Court will grant
plaintiff’s motion for leave to file the amended complaint as follows: the Court finds
that plaintiff Stevens’s federal and state law claims regarding his outside strip search
state a claim for relief. The Court finds that all of the other claims in the amended
complaint are legally frivolous and will be dismissed under 28 U.S.C. § 1915(e).

-3-

Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File an
Amended Complaint [ECF No. 30] is GRANTED, as set forth above.
IT IS HEREBY ORDERED that defendants McGinnis, Love, and McSlynn
are DISMISSED from the amended complaint.
So Ordered this 3rd day of January, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

-4-