Goins v. Dickey et al

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. # 6 ] is DENIED as moot.IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause process to issue on the first amended comp laint [Doc. # 5 ] as to plaintiff's claims for monetary relief for Eighth Amendment violations against defendants Derek Dickey and Thomas L. Bromley in their individual capacities. IT IS FURTHER ORDERED that plaintiff's claims for injunc tive relief are DISMISSED as moot. See Smith v. Hundley, 190 F.3d 852, 855 (8th Cir. 1999). IT IS FURTHER ORDERED that plaintiff's Fourteenth Amendment substantive due process claims against defendants Derek Dickey and Thomas L. Bromley are DI SMISSED, without prejudice. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that, within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure, defendants Derek Dickey and Thomas L. Bromley sh all file a responsive pleading to plaintiff's claims for monetary relief for Eighth Amendment violations, as set forth in the first amended complaint. IT IS FURTHER ORDERED that, as to defendants Terry Russell, Randy Roper, Unknown Luster, Unk nown Kitchell, and John Doe (Inspector General from Jefferson City), the Clerk shall not issue process or cause process to issue, because the amended complaint is legally frivolous and fails to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that defendants Unknown Green and Unknown Morgan are DISMISSED without prejudice, because they are not properly joined in this action under Rule 20(a)(2) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that the Clerk of Court shall docket this case as Donahue Goins v. Derek Dickey, Thomas L. Bromley, Terry Russell, Randy Roper, Unknown Luster, Unknown Kitchell, Unknown Green, Unknown Morgan, and John Doe #1 (Inspector General fro m Jefferson City). IT IS FURTHER ORDERED that, pursuant to the Court's differentiated case management system, this case is assigned to Track 5B (standard prisoner actions). A separate Order of Partial Dismissal will accompany this Memorandum and Order. Signed by District Judge E. Richard Webber on January 30, 2013. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DONAHUE GOINS,
Plaintiff,
v.
DEREK DICKEY, et al.,
Defendants.

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No. 4:12CV01584 ERW

MEMORANDUM AND ORDER
This matter is before the Court upon review of plaintiff’s first amended
complaint [Doc. #5]. As set forth below, the Court will order process to issue as to
defendants Derek Dickey and Thomas L. Bromley. The Court will dismiss this action
pursuant to 28 U.S.C. § 1915(e)(2)(B) as to defendants Terry Russell, Randy Roper,
Unknown Luster, Unknown Kitchell, and John Doe (“Inspector General from Jefferson
City”). The Court will dismiss this action as to defendants Unknown Green and
Unknown Morgan, because they are not properly joined in this case under Rule
20(a)(2) of the Federal Rules of Civil Procedure.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may 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 against a defendant who is immune from
such relief. An action is frivolous if “it lacks an arguable basis in either law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious when it is
undertaken for the purpose of harassing litigants 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). An action fails to state a claim upon which relief
can be granted if it does not plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The Amended Complaint
Plaintiff, formerly an inmate at the Eastern Reception Diagnostic and
Correctional Center (“ERDCC”),1 seeks monetary and injunctive relief in this action
brought pursuant to 42 U.S.C. § 1983. Named as defendants are Derek Dickey
(Correctional Officer), Thomas L. Bromley (Correctional Officer), Terry Russell
(Superintendent), Randy Roper (Functional Unit Manager), Unknown Luster
(Correctional Officer), Unknown Kitchell (Correctional Officer), Unknown Green,
Unknown Morgan, and John Doe (“Inspector General from Jefferson City”). Plaintiff
is suing defendants in their individual and official capacities.

1

After filing the instant action, plaintiff was released from ERDCC, and he is
now on parole.
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In paragraphs one through six of the amended complaint, plaintiff asserts claims
against defendants Derek Dickey and Thomas L. Bromley, for physically and sexually
assaulting him on April 20, 2012. Plaintiff claims that he suffered “bruises on his face
and to his face and to his ribs and pain, also to his anus.” As to defendant Russell,
plaintiff states, “T]he superintendent is the warden in charge of this institution and has
the power to suspend or fire C.O.’s when they commit assaults against inmates. He
failed to do anything.” As to defendant Roper, plaintiff states, “[H]e has full control
of the H.U. He approves and disapproves all conduct violations and I.R.R.’s before
they go to the superintendent’s office. He has the power to remove these officers . . .
but failed to do so. The only response I got from his office on the I.R.R. was - ‘Not
resolved by discussion.’”
In the remaining nineteen paragraphs of the amended complaint, plaintiff alleges
that defendants Green and Morgan assaulted him on October 14, 2012, and retaliated
against him after plaintiff asked for a hair cut. Plaintiff also mentions that “they read
my legal mail and maybe the mail that’s going out.”
Discussion
I. Permissive Joinder
At issue is whether the nine named defendants are properly joined in the instant
lawsuit. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (district court should

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question joinder of defendants and claims in prisoner cases). For the following reasons,
the Court holds that they are not.
Rule 18(a) of the Federal Rules of Civil Procedure states, “A party asserting a
claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may
join, either as independent or as alternate claims, as many claims, legal, equitable, or
maritime, as the party has against an opposing party.”
Rule 20(a)(2) of the Federal Rules of Civil Procedure allows for joinder of
defendants if “any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or series
of transactions or occurrences; and . . . any question of law or fact common to all
defendants will arise in the action.”
The allegations in paragraphs numbered one through six of the amended
complaint relative to the alleged April 20, 2012 assault [Doc. #5, pages 6 thru 9 of 18]
do not pertain to the same defendants or arise out of the same series of transactions and
occurrences as those in the remaining nineteen paragraphs of the amended complaint
relative to the alleged October 14, 2012 assault and retaliation claims [Doc. #5, pages
10 thru12 of 18]. As a result, the named defendants in this action are not properly
joined under Rule 20(a)(2).

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Because plaintiff’s allegations first address claims against Derek Dickey,
Thomas L. Bromley, Terry Russell, Randy Roper, Unknown Luster, Unknown Kitchell,
and John Doe #1 (“Inspector General from Jefferson City”) relative to the April 20
assault, and because defendants are not properly joined under Rule 20(a)(2), the Court
will dismiss this action without prejudice as to defendants Unknown Green and
Unknown Morgan. If plaintiff wishes to bring claims against these, and perhaps other,
individuals arising out of the October 14 assault, retaliation, and/or mail issues, he must
file a separate complaint, or complaints, against them, in compliance with the Federal
Rules of Civil Procedure.
II. Review under 28 U.S.C. § 1915(e)(2)(B)
A. Claims against defendants Russell, Roper, Luster, Kitchell, and
John Doe (“Inspector General from Jefferson City”)
“Liability under § 1983 requires a causal link to, and direct responsibility for, the
alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.
1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not
cognizable under § 1983 where plaintiff fails to allege that defendant was personally
involved in or directly responsible for the incidents that injured plaintiff). In the instant
action, plaintiff has not set forth any facts indicating that defendants Unknown Luster,
Unknown Kitchell, and/or John Doe #1 (“Inspector General from Jefferson City”) were

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directly involved in or personally responsible for the violation of his constitutional
rights. As such, these defendants will be dismissed pursuant to § 1915(e)(2)(B).
The Court will also dismiss defendants Russell and Roper. Plaintiff’s claims
against these two defendants are based on their supervisory positions; however, the
respondeat superior theory is inapplicable in § 1983 actions. See Boyd v. Knox, 47
F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in § 1983 suits);
Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997)(noting that general responsibility
for supervising operations of prison is insufficient to establish personal involvement
required to support liability under § 1983); Rivera v. Goord, 119 F.Supp. 2d 327, 344
(S.D.N.Y.2000) (allegations that inmate wrote to prison officials and was ignored
insufficient to hold those officials liable under § 1983); Woods v. Goord, 1998 WL
740782, at *6 (S.D.N.Y. Oct.23, 1998) (receiving letters or complaints does not render
prison officials personally liable under § 1983); Watson v. McGinnis, 964 F.Supp. 127,
130 (S.D.N.Y.1997) (allegations that an official ignored a prisoner's letter are
insufficient to establish liability).
B. Claims against defendants Dickey and Bromley
Plaintiff alleges that defendants Derek Dickey and Thomas L. Bromley violated
his Eighth and Fourteenth Amendment rights when they assaulted him on April 20,
2012.
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At this point, it is important to note the difference between constitutional claims
arising under the Due Process Clause of the Fourteenth Amendment and those arising
under a more specific provision of the Constitution, such as the Eighth Amendment.
United States Supreme Court precedent suggests that these two types of claims should
not be conflated. See Graham v. Connor, 490 U.S. 386 (1989). In Graham, the
Supreme Court rejected various lower courts’ reliance on substantive due process
standards in evaluating an excessive-use-of-force claim against a “free citizen,” where
such claims were covered by explicit provisions in the Constitution, namely the Fourth
Amendment. Id. at 392-95.2 Later, in Albright v. Oliver, 510 U.S. 266 (1994), the
Supreme Court explained that “[w]here a particular Amendment ‘provides an explicit
textual source of constitutional protection’ against a particular sort of government
behavior, ‘that Amendment, not the more generalized notion of substantive due
process, must be the guide for analyzing these claims.’” Albright, 510 U.S. at
273(quoting Graham, 490 U.S. at 395); see also, Thaddeus-X v. Blatter, 175 F.3d 378,
387 (6th Cir. 1999)(applying analytical framework of First Amendment to plaintiffs’
claims they were retaliated against for engaging in the constitutionally-protected

2

More specifically, the Court pointed to the Second Circuit’s four-factor
substantive due process test in Johnson v. Glick, 481 F.2d 1028, cert. denied, 414 U.S.
1033 (1973), as an illustration of what should not be used when an enumerated
constitutional right is available as a source of protection.
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activity of accessing the courts; abrogating the Circuit’s prior decisions imposing
Fourteenth Amendment substantive due process test to prisoners’ claims of retaliation
in violation of an enumerated constitutional right).
Applying these precepts to the case at bar, the Court concludes that because
plaintiff’s Fourteenth Amendment due process claims arose out of defendants’ alleged
assault and excessive use of force against him while he was confined at ERDCC, it is
the Eighth Amendment that must be the exclusive guide for analyzing plaintiff’s
constitutional claims. In other words, it is this particular amendment that provides the
explicit textual source of constitutional protection, and therefore, the more generalized
notion of Fourteenth Amendment substantive due process should not be used. Cf.
Cornell v. Woods, 69 F.3d 1383, 1387-90 (8th Cir. 1995)(analyzing claim of retaliatory
discipline exclusively under First Amendment). Thus, because the Eighth Amendment
properly covers plaintiff’s claims against both Dickey and Bromley, the Court will
dismiss plaintiff’s Fourteenth Amendment substantive due process claims against them.
The Court notes that plaintiff is suing Dickey and Bromley in their individual and
official capacities. 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. See 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
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§ 1983.” Id. Thus, the complaint is legally frivolous and fails to state a claim upon
which relief can be granted as to defendants Dickey and Bromley in their official
capacities. These defendants may, however, be sued in their individual capacities.
In addition, the Court notes that plaintiff is suing Dickey and Bromley for both
monetary and injunctive relief. Because plaintiff has been released on parole and is no
longer incarcerated, the Court will dismiss, as moot, his claims for injunctive relief
against these defendants.

See Smith v. Hundley, 190 F.3d 852, 855 (8th Cir.

1999)(inmate’s claims for injunctive relief are moot when he is no longer subject to
alleged unlawful actions).
In conclusion, the Court finds that plaintiff’s claims for monetary relief arising
out his assault and excessive-use-of-force allegations against defendants Derek Dickey
and Thomas L. Bromley in their individual capacities are sufficient to state Eighth
Amendment claims for relief, and therefore, process shall issue against these
defendants. All other claims and defendants will be dismissed, as set forth below.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #6] is DENIED as moot.3

3

The Court granted plaintiff in forma pauperis status on October 4, 2012 [Doc.
#4]. The Court received plaintiff’s initial partial filing fee on November 1, 2012.
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IT IS FURTHER ORDERED that the Clerk of Court shall issue process or
cause process to issue on the first amended complaint [Doc. #5] as to plaintiff’s claims
for monetary relief for Eighth Amendment violations against defendants Derek Dickey
and Thomas L. Bromley in their individual capacities.
IT IS FURTHER ORDERED that plaintiff’s claims for injunctive relief are
DISMISSED as moot. See Smith v. Hundley, 190 F.3d 852, 855 (8th Cir. 1999).
IT IS FURTHER ORDERED that plaintiff’s Fourteenth Amendment
substantive due process claims against defendants Derek Dickey and Thomas L.
Bromley are DISMISSED, without prejudice. See 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that, within the time provided by the applicable
provisions of Rule 12(a) of the Federal Rules of Civil Procedure, defendants Derek
Dickey and Thomas L. Bromley shall file a responsive pleading to plaintiff’s claims for
monetary relief for Eighth Amendment violations, as set forth in the first amended
complaint.
IT IS FURTHER ORDERED that, as to defendants Terry Russell, Randy
Roper, Unknown Luster, Unknown Kitchell, and John Doe (“Inspector General from
Jefferson City”), the Clerk shall not issue process or cause process to issue, because
the amended complaint is legally frivolous and fails to state a claim upon which relief
can be granted. See 28 U.S.C. § 1915(e)(2)(B).
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IT IS FURTHER ORDERED that defendants Unknown Green and Unknown
Morgan are DISMISSED without prejudice, because they are not properly joined in
this action under Rule 20(a)(2) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the Clerk of Court shall docket this case as
Donahue Goins v. Derek Dickey, Thomas L. Bromley, Terry Russell, Randy Roper,
Unknown Luster, Unknown Kitchell, Unknown Green, Unknown Morgan, and John
Doe #1 (“Inspector General from Jefferson City”).

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IT IS FURTHER ORDERED that, pursuant to the Court's differentiated case
management system, this case is assigned to Track 5B (standard prisoner actions).
A separate Order of Partial Dismissal will accompany this Memorandum and
Order.
So Ordered this 30th day of January, 2013.
___________________________________
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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