Boesing v. Tillman et al

Filing 8

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is DISMISSED without prejudice. IT IS FURTHER ORDERED that all pending motions are DENIED. A separate Order of Dismissal will be filed forthwith. Signed by District Judge E. Richard Webber on January 24, 2014. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CRAIG BOESING,
Plaintiff,
v.
RICHARD TILLMAN, et al.,
Defendants.

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No. 4:13CV02207 ERW

MEMORANDUM AND ORDER
This matter is before the Court on review of plaintiff’s amended complaint under
28 U.S.C. § 1915(e). Under 28 U.S.C. § 1915(e), the Court must dismiss an action
filed in forma pauperis if the allegations are frivolous, malicious, fail to state a claim
upon which relief can be granted, or seek monetary relief from a defendant immune
from such relief. On review of plaintiff’s original complaint, the Court found that it
failed to state a claim upon which relief can be granted. The Court informed plaintiff
of the defects in his allegations, and the Court permitted plaintiff the opportunity to cure
those defects. Because the amended complaint fails to state a viable claim for the same
reasons as the original complaint, the Court will dismiss this action without further
proceedings.

The Amended Complaint
This cause of action arises under 42 U.S.C. § 1983. Defendants Richard
Tillman, John Doe, and Unknown Hoots are alleged to have been police officers for the
St. Louis County Police Department. Defendant Roland Corvington is alleged to have
been a member of the St. Louis County Police Board. Plaintiff claims that on
September 9, 2013, he began running away when he saw several police cars
approaching him. Plaintiff says that when he realized he could not escape them, he
stopped running, put his hands in the air, and got down on the ground.
Plaintiff alleges that defendant Tillman then jumped on his back, punched him,
handcuffed him, and punched him again. Plaintiff claims that defendants Doe and
Hoots were laughing at him. He asserts that Tillman put the handcuffs on so tight that
his hands were turning blue, and he claims that Tillman refused to loosen the cuffs.
Plaintiff also claims that defendant Corvington failed to properly train or supervise the
police officer defendants.
Discussion
The complaint is silent as to whether defendants are being sued in their official
or individual capacities. As the Court explained in its previous Memorandum and
Order, 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-2-

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. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989). To state a claim against a municipality or a government official in his or her
official capacity, plaintiff must allege that a policy or custom of the government entity
is responsible for the alleged constitutional violation. Monell v. Dep’t of Social
Services, 436 U.S. 658, 690-91 (1978). The instant complaint does not contain any
allegations that a policy or custom of a government entity was responsible for the
alleged violations of plaintiff’s constitutional rights. As a result, the complaint fails to
state a claim upon which relief can be granted, and the Court will dismiss this action
without further proceedings.
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED without prejudice.

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IT IS FURTHER ORDERED that all pending motions are DENIED.
A separate Order of Dismissal will be filed forthwith.
So Ordered this 24th day of January, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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