Walker v. Kane et al

Filing 7

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Clerk shall issue process or cause process to issue as to defendants Doug Barker, Doug White, and Unknown Amonds, all of whom are alleged to be or have been employees of the Missouri Department of Corrections. IT IS FURTHER ORDERED that defendants Missouri Department of Corrections, Thomas Kane, George Lombardi, Tom Villmer, Amy Roderick, Lisa White, Unknown Worelly, Dwayne Kempker, and Jerome Nash are DISMISSED from this action without prejudice. A separate Order of Partial Dismissal will be filed forthwith. Signed by District Judge Catherine D. Perry on March 4, 2014. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MAURICE WALKER,
Plaintiff,

THOMAS R.. KANE, et al.,
Defendants,

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No. 4:13CV2498 CDP

MEMORANDUM AND ORDER
This matter is before me on plaintiff’s amended complaint.

Having

reviewed the amended complaint, I find that it should be partially dismissed.
Standard
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 Aenough 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 brings this action under 42 U.S.C. § 1983 against defendants in
their individual capacities.

Defendants are the Missouri Department of

Corrections, several officials with the Department of Corrections, and a prisoner
named Jerome Nash. Plaintiff alleges that on July 3, 2012, Nash was assigned to
be his cell mate. He told defendant Doug Barker that he felt “threatened” by
having Nash in his cell with him. He says he was then approached by defendants
Dale White and Unknown Amonds and he told them of his fears. Plaintiff claims
they told him they knew what Nash was capable of and that if Nash did anything,
they would put him in segregation.
Plaintiff says that on July 9 Nash sexually assaulted him for about twenty
minutes, not allowing him to cry for help. Plaintiff was unable to tell anyone for
three days. Plaintiff claims that when he did, he was placed in administrative
segregation and no investigation was conducted. Plaintiff alleges he was given no
medical attention or legal assistance. Plaintiff asserts that the other defendants
denied his grievances.

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Discussion
The complaint survives initial review as to defendants Doug Barker, Dale
White, and Unknown Amonds. As a result, the Court will direct the Clerk to serve
process on these defendants.
The complaint fails to state a claim against the Missouri Department of
Corrections. E.g., Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp.,
948 F.2d 1084, 1086 (8th Cir.

1991) (agency exercising state power is not

“person” subject to ' 1983 suit). As a result, the complaint shall be dismissed as to
the MDOC pursuant to 28 U.S.C. ' 1915(e)(2)(B).
The complaint does not state a claim against Jerome Nash under § 1983
because he is not a state actor acting under color of law.
“Only persons who cause or participate in the [constitutional] violations are
responsible. Ruling against a prisoner on an administrative complaint does not
cause or contribute to the violation.” George v. Smith, 507 F. 3d 605, 609 (7th Cir.
2007) (citations omitted). As a result, the complaint does not state a claim against
defendants Thomas Kane, George Lombardi, Tom Villmer, Amy Roderick, Lisa
White, Unknown Worelly, or Dwayne Kempker, and the Court will dismiss these
defendants from the complaint.
Accordingly,

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IT IS HEREBY ORDERED that the Clerk shall issue process or cause
process to issue as to defendants Doug Barker, Doug White, and Unknown
Amonds, all of whom are alleged to be or have been employees of the Missouri
Department of Corrections.
IT IS FURTHER ORDERED that defendants Missouri Department of
Corrections, Thomas Kane, George Lombardi, Tom Villmer, Amy Roderick, Lisa
White, Unknown Worelly, Dwayne Kempker, and Jerome Nash are DISMISSED
from this action without prejudice.
A separate Order of Partial Dismissal will be filed forthwith.
Dated this 4th day of March, 2014.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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