Thomas v. Lombardi et al

Filing 74

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the nine moving Defendants motion to dismiss the second amended complaint as to them is GRANTED. (Doc. No. 68.) Signed by District Judge Audrey G. Fleissig on 1/28/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL A. THOMAS,
Plaintiff,
v.
GEORGE A. LOMBARDI, et al.,
Defendants.

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Case No. 4:13CV00622 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion of nine of the eleven Defendants to
dismiss Plaintiff Michael Thomas’s second amended complaint for failure to state a
claim.1 Defendants are Missouri Department of Corrections (“MDC”) officials sued
under 42 U.S.C. §1983 by Plaintiff, a Missouri inmate, for violation of his constitutional
rights. For the reasons set forth below, the motion to dismiss shall be granted.
BACKGROUND
Plaintiff filed this action pro se on April 1, 2013, alleging that Defendants violated
his constitutional rights by his continued placement in administrative segregation since
June 2012. On July 15, 2013, this Court granted Plaintiff’s motion for the appointment of
counsel. (Doc. No. 17.) On October 24, 2013, a hearing was held on Plaintiff’s motion

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The moving Defendants are Claudia Arciniega, Steven Crews, Michael Gann, Dwayne
Kempker, George Lombardi, Robert Peura, Matthew Pierce, Tom Villmer and Amber
Wampler.

for a preliminary injunction. That motion was dismissed upon agreement of the parties
following the hearing.
In his second amended complaint, filed on December 4, 2013, with the assistance
of appointed counsel, Plaintiff alleges that he was placed in administrative segregation on
June 21, 2012, after being charged with sexually assaulting another inmate. On July 18,
2012, Plaintiff was found guilty of the assault and was assigned to remain in
administrative segregation at the facility in which he was then incarcerated. He alleges
that the investigation into the charge, conducted by Defendant Pierce, was not properly
conducted and that administrative segregation committee hearings, conducted by
Defendants Crews, Gann, and Peura, were unfair because they did not address Plaintiff’s
defense as he thought they should. Three other Defendants are named for failing to
properly review Plaintiff’s appeals.
Plaintiff was transferred to Southeast Correctional Center (“SECC”) on August 14,
2012, where he was assigned to an administrative segregation unit. He received periodic
reviews of his classification, and each time he was kept in administrative segregation
based upon the initial conduct violation of sexual assault.
Plaintiff alleges that on June 7, 2013, he was informed by Defendant Cheryl
Thompson that he was being moved to a more restrictive administrative segregation unit,
and that at his review on July 19, 2013, Thompson told him that she was keeping him in
administrative segregation for another 90 days “because she can.” Plaintiff further
alleges that on August 30, 2013, Defendant Ian Wallace, the warden at SECC, told him,
using a racial slur, that he would have let Plaintiff out of administrative segregation had
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he not filed the present lawsuit. The claims against Thompson and Wallace are not
covered by the current motion.
Plaintiff identifies three constitutional rights that were violated – his Eighth
Amendment right to be free from cruel and unusual punishment (Count I); his right to
due process (Count II); and his First Amendment right, based on the allegation that
Defendants retaliated against him for filing this lawsuit by keeping him in administrative
segregation after he should have been released to general population (Count III). The
second amended complaint lists Lombardi, the Director of MDC, and Wampler as
Defendants but includes no allegations about their conduct. The second amended
complaint does not specify in which capacity Defendants are being sued. In each count
Plaintiff asks for declaratory relief, injunctive relief, and damages.
The moving Defendants argue that the second amended complaint should
be dismissed because Plaintiff failed to allege facts sufficient to state a claim
under 42 U.S.C § 1983, Plaintiff did not suffer a constitutional violation, and
Defendants are named in their official capacities and are immune from claims for
damages. As stated above, the two non-moving Defendants are Cheryl Thompson
and Ian Wallace. In response to the motion to dismiss, Plaintiff summarily argues
that he has sufficiently pleaded facts to state a cause of action against Defendants.
DISCUSSION
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
which, accepted as true, states “‘a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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570 (2007)). Although a complaint need not contain “detailed factual allegations,” it
must contain facts with enough specificity “to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements,” will not pass muster. Iqbal, 556 U.S.
at 678. In sum, this standard “calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of [the claim].” Twombly, 550 U.S. at 556.
The reviewing court must accept the plaintiff’s factual allegations as true and
construe them in the plaintiff’s favor, but is not required to accept the legal conclusions
the plaintiff draws from the facts alleged. Iqbal, 556 U.S. at 678; see also Retro
Television Network, Inc. v. Luken Comm’cns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012).
The Court must ‘“draw on its judicial experience and common sense,’” and consider the
plausibility of the plaintiff’s claim as a whole, not the plausibility of each individual
allegation. See Zoltek Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir.
2010) (citation omitted)).
The Court first notes that none of the moving Defendants were alleged to have
been involved in the alleged retaliation, and so they are entitled to dismissal of Count III.
With respect to Counts I and II, the moving Defendants correctly argue that they are not
subject to liability for monetary damages because Plaintiff did not state in his pleadings
that they were being sued in their individual capacities. It is presumed, therefore, that
they are being sued only in their official capacity, thereby barring any claim against them
for monetary damages. See, e.g., Thomas v. Dorris, No. 1:09-CV-85-SNLJ, 2010 WL

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1254625, at *2 (E.D. Mo. Mar. 24, 2010); Morr v. Mo. Dep’t of Mental Health, No.
4:08CV359 RWS, 2009 WL 1140108, at *4 & n.3 (E.D. Mo. Apr. 28, 2009).
Plaintiff’s claims for declaratory and injunctive relief as to Counts I and II also fail
as to the moving Defendants. Generally, the placement of a prisoner in administrative
segregation is not considered cruel and unusual punishment. See Jones v. Mabry, 723
F.2d 590, 594–95 (8th Cir. 1983). As for the duration of Plaintiff's segregation, the
Eighth Circuit Court of Appeals has held that an inmate sentenced to nine years in
administrative segregation fails to implicate the Eighth Amendment. See Brown v. Nix,
33 F.3d 951, 955 (8th Cir. 1994). Nor do any of the conditions of the administrative
segregation alleged by Plaintiff implicate the Eighth Amendment. See Phillips v. Norris,
320 F.3d 844, 848 (8th Cir. 2003).
In order to prevail on his due process claim, Plaintiff must establish the imposition
of “‘atypical and significant hardship . . . in relation to the ordinary incidents of prison
life.’” See id. at 847 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). In this
context, “any liberty interest must be an interest in the nature of the prisoner’s
confinement, not an interest in the procedures by which the state believes it can best
determine how he should be confined.” Id. (citation omitted). After accepting the factual
allegations in Plaintiff’s second amended complaint as true and drawing all reasonable
inferences in his favor, the Court finds that he fails to plead sufficient facts to suggest a
violation of his due process rights.

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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the nine moving Defendants’ motion to dismiss
the second amended complaint as to them is GRANTED. (Doc. No. 68.)

________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 28th day of January, 2014.

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