Phillips v. Hurley et al

Filing 59

MEMORANDUM AND ORDER re: 50 MOTION to Set Aside Order/Judgment of Interlocutory Partial Summary Judgment filed by Plaintiff Roy Phillips, 52 MOTION to Amend/Correct 9 Amended Complaint, filed by Plaintiff Roy Phillip s, 51 MOTION to Add Party filed by Plaintiff Roy Phillips. IT IS HEREBY ORDERED that the plaintiff's motion to set aside partial summary judgment (ECF # 50) is GRANTED as set forth herein.IT IS FURTHER ORDERED that plaintiff's motion to add party defendants (ECF #51) is DENIED. IT IS FINALLY ORDERED that plaintiff's motion for leave to amend the first amended complaint (ECF #52) is GRANTED in part and DENIED in part as set forth herein. The motion is GRANTED only to the extent that plaintiff is granted leave to add a claim of injunctive relief against defendant Hurley on the claim in the first amended complaint for failure to replace broken eye glasses. In all other respects, the motion is DENIED. The filing of the proposed second amended complaint is DENIED. Plaintiff may file a second amended complaint that is consistent with the Court's prior orders and this memorandum and order within seven days. Signed by District Judge Stephen N. Limbaugh, Jr on 3/24/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROY PHILLIPS,
Plaintiff,
v.
JAMES HURLEY, et al.,
Defendant.

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Case No. 4:13CV1745 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motions to set aside partial summary
judgment, add party defendants, and amend the first amended complaint. The motions
have been briefed and the matter is ripe for disposition. For the following reasons, the
Court will grant the motion to set aside partial summary judgment, deny the motion to
add party defendants, and grant in part and deny in part the motion for leave to amend the
first amended complaint
I.

Background
Plaintiff Roy Phillips, an inmate at the Northeast Correctional Center (“NECC”),

filed this action pursuant to 42 U.S.C. §§ 1983 and 1985 against Missouri Department of
Corrections employees James Hurley, Larry Allen, Tyree Butler, Kristin Cutt, John
Hagerty, Janet Wilson, Marsha Kiel, Amber Grote, Donna Kearse, and Dana Jost.
Plaintiff sued defendants in both their individual and official capacities. Plaintiff’s first
amended complaint includes five counts: count I alleges violations regarding plaintiff’s
placement, and continuation, in administrative segregation; count II alleges a failure to

replace broken eye glasses; count III alleges interference with legal mail; count IV
alleges failure to replace or compensate for lost property (ear buds and cotton shorts); and
count V alleges failure to provide necessary medical care.
Upon review of plaintiff’s motion for leave to file the first amended complaint,
this Court dismissed the following claims: (1) the official capacity claims against Kearse,
Jost, Butler, Cutt, and Allen; (2) the loss of property claims relative to the ear buds and
cotton shorts stated in count IV; and (3) the § 1985 claims. The Court allowed the filing
of the first amended complaint and issued service of process on plaintiff’s remaining
§ 1983 claims based on alleged violations of plaintiff’s First, Eighth, and Fourteenth
Amendment rights. Plaintiff was allowed to proceed against defendants Hurley, Wilson,
Kiel, Grote, Hagerty, Kearse, Jost, Butler, Cutt, and Allen in their individual capacities
and, as to the claim for injunctive relief on his claim of interference with legal mail,
against defendants Hurley, Wilson, Kiel, Grote, and Hagerty in their official capacities.
Thereafter, defendant Janet Wilson was dismissed for plaintiff’s failure to serve process
as required by Federal Rule of Civil Procedure 4(m).
Subsequently, defendants Hurley, Butler, Cutt and Allen filed a motion to dismiss
count I for failure to exhaust administrative remedies. Defendant Hurley filed a motion
to dismiss count II for failure to state a claim. Defendants Kiel, Grote, Hagerty, and
Hurley filed a motion to dismiss count III for failure to exhaust administrative remedies
and failure to state a claim. As to count I, the Court found that plaintiff did not dispute
the evidence offered by defendants that he had failed to exhaust administrative remedies
as to his claim of unlawful placement, and continuation, in administrative segregation.
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Pursuant to Rule 12(d) of the Federal Rules of Civil Procedure, the Court converted the
motion to dismiss to a motion for summary judgment and entered judgment in favor of
defendants as to the claims in count I of the amended complaint. The Court denied the
motion to dismiss count II as to the claim against defendant Hurley but granted the
motion to dismiss as to the alleged violations of the Missouri constitution as a basis for
plaintiff’s § 1983 claim. On the motion to dismiss count III, the Court granted the motion
as to defendant Hagerty and to the extent plaintiff alleged violations of the Missouri
constitution as a basis for his § 1983 claim but denied the motion as to defendants Kiel,
Grote, and Hurley. Thereafter, defendants Donna Kearse and Dana Jost were dismissed
for plaintiff’s failure to serve process as required by Federal Rule of Civil Procedure
4(m).
II.

Motion to Set Aside Partial Summary Judgment
Plaintiff moves this Court to set aside the summary judgment entered on count I of

his first amended complaint. The Court entered judgment for defendants because
plaintiff did not dispute the affidavit testimony submitted by defendants that plaintiff did
not file a grievance with regard to his placement, or the continuation of his placement, in
administrative segregation. In his response to the defendant’s motion to dismiss on this
basis, plaintiff argued that his amended complaint included claims under the Missouri
constitution and that the exhaustion requirement did not apply to his state law claims.
Plaintiff’s amended complaint, however, alleged only § 1983 claims and any references
to violations of the state constitution do not state a claim under § 1983. Doe v. Gooden,
214 F.3d 952, 955 (8th Cir. 2000); Ebmeier v. Stump, 70 F.3d 1012, 1013 (8th Cir. 1995).
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Accordingly, this Court found that it was undisputed that plaintiff failed to exhaust his
administrative remedies with regard to his § 1983 claim in count I of the first amended
complaint. Because the Court relied on materials outside the pleadings in coming to its
conclusion that plaintiff had not exhausted his administrative remedies, the motion was
converted to one for summary judgment and judgment was entered for defendants on
count I.
Plaintiff now argues that the summary judgment should be set aside because he
had no notice of the conversion and was not given an opportunity to respond to the
materials submitted by defendants. Further, plaintiff has submitted an affidavit alleging
he attempted to file an Informal Resolution Request (IRR), the first step in the
administrative remedy process, by passing notes to correctional officers. Plaintiff argues
that failure to exhaust administrative remedies was not a bar to his claim because no such
remedies were fairly available to him.
Based on recent Eighth Circuit precedent, it appears that dismissal without
prejudice, and not summary judgment, was the proper remedy based on the finding that
plaintiff failed to exhaust administrative remedies for his § 1983 claim. Porter v. Sturm,
no. 13-2729 (8th Cir. March 23, 2015). Accordingly, this Court will set aside the partial
summary judgment. Further, based on the allegations in plaintiff’s motion and affidavit,
the Court will not modify its prior ruling to enter a dismissal without prejudice. Instead,
plaintiff will be allowed to proceed with the allegations in count I of the first amended
complaint.

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III.

Motion to Add Party Defendants
A.

Kearse and Jost

Plaintiff seeks to add as defendants Donna Kearse and Dana Jost, who were
previously dismissed for failure to serve process as required by Federal Rule of Civil
Procedure 4(m). In support of this request, plaintiff states only that “counsel for plaintiff
has obtained additional information based upon which they believe such defendants may
personally be served with process, and/or notice of waiving service under FRCP 4(d).”
Plaintiff fails to state any reason why service could not be effected on Kearse and Jost in
the one year period of time following the filing of the complaint until they were
dismissed. Given plaintiff’s failure to state good cause or excusable neglect, or any
reason, for the failure to serve Kearse and Jost, the Court finds no reason to allow
plaintiff to add Kearse and Jost as defendants at this late date.
B.

Hurley, Kearse, Jost, Kiel, and Grote – official capacity as to claim
for injunctive relief

Plaintiff seeks to reinstate his claims against Hurley, Kearse, Jost, Kiel, and Grote
in their official capacity as to his claim for injunctive relief. Kearse and Jost are not
currently defendants and the Court has determined it will deny plaintiff’s request to add
them as defendants. As the case stands, the Court previously allowed the filing of the
first amended complaint on plaintiff’s claims for injunctive relief for the alleged First
Amendment violations regarding interference with legal mail as to defendants Hurley,
Kiel, and Grote in their official capacities. Plaintiff’s request is, therefore, moot. To the
extent plaintiff seeks to add a claim for injunctive relief on the claim in the first amended

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complaint for failure to replace broken eye glasses against defendant Hurley, the Court
will grant plaintiff leave to amend his complaint to add that claim. A prisoner may seek
injunctive relief in suits against state employees in their official capacity. Darden v.
Missouri Dept. of Corrections, 2:07CV31 ERW, 2009 WL 87776, at *4 (E.D. Mo. Jan.
12, 2009).
C.

C. Spradley and Stacy Jennings

Plaintiff seeks to add Missouri Department of Corrections employees C. Spradley
and Stacy Jennings on the grounds that plaintiff seeks to file supplemental claims against
them regarding “new events and episodes of defendants’ refusal to allow plaintiff to send
out legal mailings.” Plaintiff’s allegations against Spradley and Jennings are based on
events occurring after the date plaintiff filed his first amended complaint. He does not
seek to add these defendants as to any pending claims in the first amended complaint.
This case has been pending since September 2013 and, at this late date, the Court will not
allow the addition of new defendants for new claims occurring after the filing of this
action.
IV.

Motion to Amend Complaint to Add Supplemental Claims
Plaintiff seeks to add supplemental claims which occurred after the filing of the

first amended complaint including a subsequent placement in administrative segregation
and “new events and episodes” of interference with legal mail.
Rule 15 of the Federal Rules of Civil Procedure states that A[t]he court should
freely give leave [to amend] when justice so requires.@ The Supreme Court has

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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
reasonCsuch 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. C the leave sought should, as
the rules require, be Afreely given.@
Foman v. Davis, 371 U.S. 178, 182 (1962). E.g., Coleman v. Ramada Hotel Operating
Co., 933 F.2d 470, 473 (7th Cir. 1991) (AAlthough 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.@).
A.

New claim regarding placement in administrative segregation

Plaintiff seeks to amend his complaint to add a supplemental claim regarding “a
new solitary confinement episode” occurring after this action was filed. In his affidavit
in support of the motion to amend, plaintiff alleges he was placed in administrative
segregation for twenty-one days without any explanation or justification other than it was
for protective custody following an assault on plaintiff by another inmate. This new
claim arose out of a set of facts entirely unrelated to the claims in the first amended
complaint and occurred after the filing of the first amended complaint. Allowing the
addition of this new claim in this action, which has been pending since September 5,

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2013, would be unduly prejudicial to the defendants in this matter and would result in
undue delay of the pending claims. The motion to add this unrelated claim is denied.
B.

New allegations of interference with legal mail

Plaintiff seeks to amend his complaint to add a supplemental claim regarding “new
events and episodes of defendants’ refusal to allow plaintiff to send out legal mailings”
occurring after this action was filed. This new claim would require the addition of two
new defendants unrelated to the claims in the first amended complaint. The Court has
determined it will not allow the addition of two new defendants for claims accruing after
the filing of this action. Further, this Court finds that allowing the addition of new claims
involving new defendants in this action, which has been pending since September 5,
2013, would be unduly prejudicial to the defendants in this matter and would result in
undue delay of the pending claims. The motion to add this claim is denied.
C.

Hurley – failure to provide necessary medical care claim

Although not specifically addressed by plaintiff, the proposed second amended
complaint adds Hurley as a defendant in the failure to provide necessary medical care
claim. Hurley is not named as a defendant for that claim in the first amended complaint.
The second amended complaint does not add any new facts on the failure to provide
necessary medical care claim as to Hurley. The motion for leave to amend on this basis
is denied.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff’s motion to set aside partial
summary judgment (ECF # 50) is GRANTED as set forth herein.
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IT IS FURTHER ORDERED that plaintiff’s motion to add party defendants
(ECF #51) is DENIED.
IT IS FINALLY ORDERED that plaintiff’s motion for leave to amend the first
amended complaint (ECF #52) is GRANTED in part and DENIED in part as set forth
herein. The motion is GRANTED only to the extent that plaintiff is granted leave to add
a claim of injunctive relief against defendant Hurley on the claim in the first amended
complaint for failure to replace broken eye glasses. In all other respects, the motion is
DENIED. The filing of the proposed second amended complaint is DENIED. Plaintiff
may file a second amended complaint that is consistent with the Court’s prior orders and
this memorandum and order within seven days.
Dated this 24th day of March, 2015.

___________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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