Johnson v. Blake et al

Filing 9

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Clerk shall not issue process or cause process to issue upon the amended complaint at this time. IT IS FURTHER ORDERED that the Court shall mail to plaintiff a copy of the Court's form Prisone r Civil Rights Complaint. IT IS FURTHER ORDERED that plaintiff shall submit a second amended complaint no later than thirty (30) days from the date of this Memorandum and Order. IT IS FURTHER ORDERED that plaintiff's failure to file an amended c omplaint within thirty (30) days of the date of this Memorandum and Order in compliance with the instructions set forth above shall result in a dismissal of this action, without prejudice. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. #4] is DENIED without prejudice.(NOTE: Courts form Prisoner Civil Rights Complaint mailed to Plaintiff) Signed by District Judge John A. Ross on 7/27/12. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOSEPH M. JOHNSON,
Plaintiff,
v.
ALAN BLAKE, et al.,
Defendants.

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No. 4:12CV510 JAR

MEMORANDUM AND ORDER
This matter is before the Court upon plaintiff’s filing of an amended complaint.1
Plaintiff is a civil detainee at Fulton State Hospital proceeding in this action as a
pauper, pursuant to 28 U.S.C. § 1915. After reviewing the amended complaint and
finding that it still fails to meet the requisite pleading standards, the Court will provide
plaintiff with one last opportunity to amend his pleading in this action.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed
in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a defendant who is immune from
such relief. An action is frivolous if it “lacks an arguable basis in either law or fact.”
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After reviewing plaintiff’s complaint pursuant to 28 U.S.C. § 1915 and
finding it deficient in several respects, the Court provided plaintiff with an
opportunity to amend his complaint to properly state a claim for relief. [Doc. #7]

Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose
of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify
the allegations in the complaint that are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These include “legal conclusions”
and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by
mere conclusory statements.” Id. at 1949. Second, the Court must determine whether
the complaint states a plausible claim for relief. Id. at 1950-51. This is a “contextspecific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 1950. The plaintiff is required to plead facts that show more
than the “mere possibility of misconduct.” Id. The Court must review the factual
allegations in the complaint “to determine if they plausibly suggest an entitlement to
relief.” Id. at 1951. When faced with alternative explanations for the alleged
misconduct, the Court may exercise its judgment in determining whether plaintiff’s
conclusion is the most plausible or whether it is more likely that no misconduct
occurred. Id. at 1950, 51-52.
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The Amended Complaint
Plaintiff, a civil detainee at Fulton State Hospital, brings this action under 42
U.S.C. § 1983 alleging violations of his civil rights when he was civilly detained at
Sex Offender Rehabilitation and Treatment Services in Farmington, Missouri
(“SORTS”). Named as defendants are: Alan Blake (Superintendent, “SORTS”),
Linda Moll (Doctor), Sujatha Ramesh (Doctor), Jay Englehart (Doctor), Dave Hayreh
(Doctor), Scott Jordan (Housing Unit Manager) and LaJuan Tucker (fellow civil
detainee). The amended complaint seeks monetary relief.
Plaintiff alleges that he was sexually assaulted by defendant Tucker at SORTS
in December of 2009. Plaintiff states that in December of 2011, a “committee,” made
up of defendants Blake, Moll, Ramesh, Englehart, Hayreh and Jordan moved plaintiff
to the same housing unit as defendant Tucker. Plaintiff claims that when he found out
he was being moved to the same housing unit as defendant Tucker, he told “the
administration” that he was fearful that he would be sexually assaulted by this
individual. Plaintiff asserts that despite being assured of his safety, defendant Tucker
raped him on numerous occasions in 2012.

Discussion

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As pleaded, plaintiff’s first amended complaint fails to state a claim upon which
relief may be granted against the defendants employed by the Missouri Department
of Mental Health. Just as the complaint was lacking in the first instance, it still fails
to enunciate the capacity under which the defendants are being sued - whether the
defendants are being sued in their official or individual capacities.

Where a

“complaint is silent about the capacity in which [plaintiff] is suing defendant, [a
district court must] interpret the complaint as including only official-capacity claims.”
Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995); Nix v.
Norman, 879 F.2d 429, 431 (8th Cir. 1989).
Naming a government official in his or her official capacity is the equivalent
of naming the government entity that employs the official. The named defendants are
employed by the Missouri Department of Mental Health, which is a Department or
Subdivision of 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, none of the named defendants can be held
liable for the allegations enumerated in plaintiff’s amended complaint, as currently
pleaded against them in their official capacities.
Moreover, plaintiff cannot state a claim for relief under § 1983 against
defendant Tucker, a fellow civil detainee. To state a claim under § 1983, a plaintiff
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must establish that a person acting under color of state law committed the acts which
form the basis of the complaint. Parratt v. Taylor, 451 U.S. 527, 535 (1981),
overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 328 (1986).
Defendant Tucker is a private, rather than state actor, and he cannot be held liable
under 42 U.S.C. § 1983.
Once again, because of the serious nature of the allegations in plaintiff’s
pleading, the Court will not dismiss the case at this time. Instead, the Court will give
plaintiff the opportunity to file a second amended complaint. Plaintiff shall have
thirty (30) days from the date of this Order to file a second amended complaint.
Plaintiff is warned that the filing of a second amended complaint replaces the original
complaint and the first amended complaint, and claims that are not re-alleged are
deemed abandoned. E.g., In re Wireless Telephone Federal Cost Recovery Fees
Litigation, 396 F.3d 922, 928 (8th Cir. 2005). In other words, the filing of the second
amended complaint completely replaces the original and amended complaints, so if
plaintiff wishes to include a claim in his lawsuit, his claim must be clearly stated in
the second amended complaint. Additionally, he must also clearly indicate each of the
defendants which he is pursuing allegations against, and he must articulate, for each
of those defendants, the factual circumstances surrounding their alleged wrongful

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conduct. Plaintiff’s failure to make specific and actionable allegations against any of
the defendants will result in their dismissal from this case.
If plaintiff fails to file a second amended complaint within thirty (30) days, the
Court will dismiss this action without prejudice. After the filing of plaintiff’s second
amended complaint, the Court will review the second amended complaint pursuant to
28 U.S.C. § 1915 for frivolousness, maliciousness and/or failure to state a claim. A
claim and/or defendant must survive § 1915 review in order for plaintiff to proceed
on those claims in this lawsuit.
Last, after careful review of the record in this matter, the Court will decline to
appoint counsel to plaintiff at this time. There is no constitutional or statutory right
to appointed counsel in civil cases. Nelson v. Redfield Lithograph Printing, 728 F.2d
1003, 1004 (8th Cir. 1984). In determining whether to appoint counsel, the Court
considers several factors, including (1) whether the plaintiff has presented nonfrivolous allegations supporting his or her prayer for relief; (2) whether the plaintiff
will substantially benefit from the appointment of counsel; (3) whether there is a need
to further investigate and present the facts related to the plaintiff’s allegations; and (4)
whether the factual and legal issues presented by the action are complex. See Johnson
v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986); Nelson, 728 F.2d at 1005.

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After considering these factors, the Court finds that the facts and legal issues
involved in this action are not so complicated that the appointment of counsel is
warranted at this time. Although the claims articulated in plaintiff’s pleading are
serious in nature, they are straightforward and do not involve intricate issues of law
or fact. As such, plaintiff’s motion for appointment of counsel will be denied, without
prejudice.
Accordingly,
IT IS HEREBY ORDERED that the Clerk shall not issue process or cause
process to issue upon the amended complaint at this time.
IT IS FURTHER ORDERED that the Court shall mail to plaintiff a copy of
the Court’s form Prisoner Civil Rights Complaint.
IT IS FURTHER ORDERED that plaintiff shall submit a second amended
complaint no later than thirty (30) days from the date of this Memorandum and Order.
IT IS FURTHER ORDERED that plaintiff’s failure to file an amended
complaint within thirty (30) days of the date of this Memorandum and Order in
compliance with the instructions set forth above shall result in a dismissal of this
action, without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #4] is DENIED without prejudice.
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Dated this 27th day of July, 2012.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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