Clemons v. Lombardi et al

Filing 39

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Court's Order dated October 22, 2013, [ECF No. 36 ] is partially VACATED, as set forth above. IT IS FURTHER ORDERED that the amended complaint [ECF No. 37 ] is STRICKEN from the record. IT IS FURTHER ORDERED that any amended pleading must be filed no later than December 2, 2013. (Amended/Supplemental Pleadings due by 12/2/2013.) Signed by District Judge Catherine D. Perry on November 13, 2013. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REGINALD CLEMONS,
Plaintiff,
v.
GEORGE LOMBARDI, et al.,
Defendants.

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No. 4:13CV458 CDP

MEMORANDUM AND ORDER
This matter is before me on plaintiff’s amended complaint, which is subject to
review under Rule 15 of the Federal Rules of Civil Procedure and 28 U.S.C.
§ 1915(e). Having reviewed the amended complaint, I find that it should be stricken
from the record.
Standard
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); 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.”).
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.” Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 504 U.S.
25, 31 (1992). 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). A complaint fails to state a claim 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).

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Background
Plaintiff, a death-sentenced prisoner, filed this action under 42 U.S.C. § 1983
against defendants Thomas Collins, Daniel Dicus, John/Jane Doe (Functional Unit
Manager), John/Jane Doe (General Counsel), Jeff Harper, Christine Henson, Timothy
Lancaster, George A. Lombardi, Douglas Nickelson, Brenda Ross, and Troy Steele,
alleging that defendants monitored his telephone conversations with his attorneys in
violation of the First Amendment, retaliated against him for participating in three-way
telephone calls with counsel by placing him in administrative segregation, improperly
restrained him during a personal visit with his attorneys, and improperly read his
privileged mail.
Defendants filed a motion to dismiss for failure to state a claim. I granted the
motion with respect to defendants John/Jane Doe (Functional Unit Manager),
John/Jane Doe (General Counsel), Christine Henson, Timothy Lancaster, George A.
Lombardi, Douglas Nickelson, Brenda Ross, and Troy Steele, because these
defendants were not personally involved in the alleged violations of plaintiff’s
constitutional rights.
Amended Complaint
Plaintiff sues defendants in their individual capacities under § 1983. Plaintiff
restates his allegations that defendants have monitored his telephone conversations
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with his attorneys, have retaliated against him, have placed him in administrative
segregation, and have improperly restrained him. However, the allegations in the
amended complaint are vague and do not sufficiently show that any of the named
defendants was personally responsible for violating his rights. Plaintiff often states
that “defendants” committed an unlawful action against him. This is insufficient to
state a claim. In order to state a claim under § 1983, a plaintiff must name the
individual or individuals responsible for each unlawful act. E.g., 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); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995)
(respondeat superior theory inapplicable in § 1983 suits). As a result, the amended
complaint does not state a claim upon which relief can be granted.
Under Rule 15, a litigant is not permitted to add futile claims in an amended
complaint. Therefore, I will vacate the portion of my October 22, 2013, Order
allowing plaintiff to file the amended complaint, and I will strike the amended
complaint from the record. If plaintiff wishes to file a second amended complaint, he
must file a motion for leave to amend along with a proposed amended complaint no
later than December 2, 2013.
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Accordingly,
IT IS HEREBY ORDERED that the Court’s Order dated October 22, 2013,
[ECF No. 36] is partially VACATED, as set forth above.
IT IS FURTHER ORDERED that the amended complaint [ECF No. 37] is
STRICKEN from the record.
IT IS FURTHER ORDERED that any amended pleading must be filed no
later than December 2, 2013.
Dated this 13th day of November, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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