Thompson v. Villmer et al

Filing 8

MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that this action is DISMISSED, without prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that to the extent plaintiff has alleged any state law claims against defendant Ford, these claims are also DISMISSED, without prejudice, pursuant to 28 U.S.C. § 1367(c). An Order of Dismissal will accompany this Memorandum and Order.. Signed by District Judge Charles A. Shaw on 11/30/2015. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GREGORY THOMPSON,

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Plaintiff,
v.
JAMES FORD,
Defendant.

No. 4:15-CV-1012 CAS

MEMORANDUM AND ORDER
This matter is before the Court upon review of plaintiff’s amended complaint. After
reviewing the amended complaint, the Court will dismiss the amended complaint in its entirety.
See 28 U.S.C. § 1915(e)(2)(B).
28 U.S.C. § 1915(e)
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 Alacks 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 pursuant to 42 U.S.C. § 1983 alleging violations of his civil
rights.

Named as the sole defendant in the amended complaint is James Ford (Sergeant,

Farmington Correctional Center (“FCC”)).
Plaintiff claims that on July 9, 2014, he was in Housing Unit 6 in FCC when defendant
Ford threatened to mace him in the face. Plaintiff claims at the time he was threatened by
defendant Ford he was in handcuffs with his arms restrained behind his back. Plaintiff asserts
that defendant Ford also placed him in a “choke-hold,” telling plaintiff, “I’ll kill you.”
Plaintiff asserts that defendant Ford was so angry with him that after harassing him with
verbal threats and threatening him with mace, he also jumped on top of plaintiff’s back and
pushed plaintiff to the ground, whereupon plaintiff went into cardiac arrest. Plaintiff claims that
his heart attack was a direct result of the physical altercation, as well as the choke-hold.
Plaintiff asserts that he was taken by ambulance to Mercy hospital approximately one
week later, and he was told that he had to have heart surgery. Plaintiff claims that he later found
out that he was given a false conduct violation in relation to the incident as a “cover-up,” which
was signed by defendant Ford.
Plaintiff makes claims against defendant Ford under the Eighth Amendment for excessive
force and for deliberate indifference to his medical needs. In his request for relief, plaintiff seeks
damages and injunctive relief. He asks that defendant Ford be fired from his position at the
Missouri Department of Corrections, and he seeks criminal charges against defendant Ford.
Despite being given time to specifically identify the capacity under which he is suing
defendant Ford, plaintiff has failed to do so.

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Discussion
The amended complaint, like the original complaint, does not state whether defendant
Ford is being sued in his official or individual capacity. As the Court pointed out in its
September 22, 2015 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-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, in this case the State of Missouri. Will v. Michigan Dep=t of State Police, 491 U.S. 58,
71 (1989). “[N]either a State nor its officials acting in their official capacity are >persons= under
§ 1983.” Id. As a result, the amended complaint fails to state a claim upon which relief can be
granted.
In its prior Memorandum and Order, the Court requested that plaintiff tell the Court
whether he was specifically suing defendant Ford in his individual capacity, his official capacity,
or both. Plaintiff failed to do so. Unfortunately, plaintiff’s failure must result in a dismissal of
his amended complaint.
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED, without prejudice,
pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that to the extent plaintiff has alleged any state law
claims against defendant Ford, these claims are also DISMISSED, without prejudice, pursuant
to 28 U.S.C. § 1367(c).

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An Order of Dismissal will accompany this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 30th day of November, 2015.

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