Wagner v. Worsham

Filing 13

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiff's motion for reconsideration [Doc. # 12 ] or in the alternative to amend, is DENIED. IT IS FURTHER ORDERED that an appeal of this action would not be taken in good faith. Signed by District Judge Catherine D. Perry on 1/13/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BENJAMIN WAGNER,
Plaintiff,
v.
DOUG WORSHAM,
Defendant.

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No. 4:15CV1362 CDP

MEMORANDUM AND ORDER
Before the Court is plaintiff’s motion for reconsideration of the dismissal of
this action pursuant to 28 U.S.C. § 1915(e)(2)(B). He alternatively asks the court
for leave to file an amended complaint. In the Order dismissing the case, the Court
found that plaintiff’s claims against defendant Worsham, the purported Supervisor
of Religious/Spiritual Programming at the Missouri Department of Corrections,
failed to state a claim under the First Amendment.
In his motion for reconsideration plaintiff first argues that the “actions of
MDOC are through Doug Worsham.” Thus, he seeks reconsideration of the
dismissal of the claims against defendant Worsham.1 From this statement, it
appears that plaintiff is seeking to allege a respondeat superior claim against
defendant. Unfortunately, respondeat superior theories are inapplicable in § 1983
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Worsham was named in both his individual and official capacities. The official capacity claims
were dismissed because neither claims against the State nor its officials can be upheld under §
1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989).

suits. See Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995). As explained in the
Court’s December 29, 2015 Memorandum and Order, to allege a First Amendment
claim against Doug Worsham in his individual capacity, plaintiff must allege that
Mr. Worsham, himself, was directly involved in or personally responsible for a
specific violation of plaintiff’s rights. See, e.g., Madewell v. Roberts, 909 F.2d
1203, 1208 (8th Cir. 1990).
Next, plaintiff argues that he has a claim under the Establishment Clause
against defendant Worsham. The Establishment Clause of the First Amendment
prohibits governments from making any laws “respecting an establishment of
religion.” Under this clause, “[i]t is beyond dispute that, at a minimum, the
Constitution guarantees that government may not coerce anyone to support or
participate in religion or its exercise, or otherwise act in a way which establishes a
state religion or religious faith, or tends to do so.” Lee v. Weisman, 505 U.S. 577,
587 (1992).
Although there is some question as to what the proper test is for determining
whether the Establishment Clause has been violated in different contexts, see, e.g.,
Tangipahoa Parish Bd. of Educ. v. Freiler, 530 U.S. 1251 (2000) (Scalia, J.,
dissenting from denial of cert.), it appears that the Eighth Circuit employs the
Lemon test, under which a challenged practice will be upheld only if “(1) it has a
secular purpose; (2) its principal or primary effect neither advances nor inhibits
religion; and (3) it does not foster an excessive entanglement with religion.” ACLU
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Neb. Found. v. City of Plattsmouth, Neb., 419 F.3d 772, 775 (8th Cir.2005) (citing
Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)). The Lemon test is directed
primarily at those situations in which the government has allegedly acted to assist
an existing religious group, such as where local governments permit religious
monuments on public lands, and it therefore is not a perfect fit for claims, such as
plaintiff’s, as plaintiff does not appear to be alleging that a government actor is
“coercing him. . .to subscribe to religion generally, or to a particular religion.”
Kerr v. Farrey, 95 F.3d 472, 478-79 (7th Cir.1996).
Given that plaintiff has not articulated any “coercion” on behalf of Mr.
Worsham in his complaint, even if plaintiff had truly brought a claim under the
Establishment Clause in his complaint, it would be subject to dismissal. See, e.g.,
Strutton v. Meade, No. 4:05CV2022 ERW, 2010 WL 1253715, (E.D.Mo. March
31, 2010).
Last, plaintiff asserts generally, that there is relevant case law stating that a
government cannot, through a governmental policy, advance or set back one
religion over another. Plaintiff also generally states that a government cannot force
a person to participate in a religion. Plaintiff made neither of these claims in his
complaint, i.e., he did not identify such a policy and he did not claim he was forced
to participate in a religion which he opposed participating in.
Plaintiff cannot, through a motion for reconsideration with an alternative
request to amend, turn generalized and conclusory statements into a motion to
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amend his complaint by interlineation. Further, the Court notes that neither of
these “statements” now alleged in the motion for reconsideration matches the
factual assertions outlined in the original complaint.

Thus, these assertions would

most likely not relate back to the original complaint in this matter, pursuant to
Fed.R.Civ.P.15(c). Moreover, plaintiff has not provided the Court with a
proposed amended complaint showing non-futile claims for relief. There is no
reason for the court to believe that plaintiff could cure the defects in his pleading
by amendment, and his alternative motion to amend the complaint will be denied at
this time.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for reconsideration
[Doc. #12] or in the alternative to amend, is DENIED.
IT IS FURTHER ORDERED that an appeal of this action would not be
taken in good faith.
Dated this 13th day of January, 2016.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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