Smotherman v. Missouri Department of Corrections et al

Filing 3

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is DISMISSED pursuant to 28 U.S.C. § 1915A(b ). A separate order of dismissal will be entered herewith. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge John A. Ross on 6/21/2018. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SANCHEZ SMOTHERMAN,
Plaintiff,

v.
MISSOURI DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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No. 4:18-cv-995-DDN

MEMORANDUM AND ORDER
This matter is before the Court for preservice screening pursuant to 28 U.S.C. § 1915A.
Upon such review, the Court finds that the complaint should be dismissed.
28 U.S.C. § 1915A
Pursuant to 28 U.S.C. § 1915A, this Court must "review before docketing if feasible or,
in any event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a governmental
entity." The Court must then dismiss the complaint, or any portion thereof, if it is frivolous,
malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against
a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). An action is frivolous if it
"lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989).
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, 46163 (E.D.N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987). An action fails to state a claim upon
which relief can be granted if it does not plead "enough facts to state a claim to relief that is
plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544,570 (2007).

To determine whether an action fails to state a claim upon which relief can be granted,
the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the
complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). These include "legal conclusions" and "[t]hreadbare recitals of the elements of a cause
of action [that are] supported by mere conclusory statements." Id. at 678. Second, the Court
must determine whether the complaint states a plausible claim for relief. Id. at 679. This is a
"context-specific task that requires the reviewing court to draw on its judicial experience and
common sense." Id.
The plaintiff is required to plead facts that show more than the "mere possibility of
misconduct." Iqbal, 556 U.S. at 679. The Court must review the factual allegations in the
complaint "to determine if they plausibly suggest an entitlement to relief." Id. at 681. When
faced with alternative explanations for the alleged misconduct, the Court may exercise its
judgment in determining whether plaintiffs proffered conclusion is the most plausible or
whether it is more likely that no misconduct occurred. Id. at 680-82.
Pro se complaints are to be liberally construed, Estelle v. Gamble, 429 U.S. 97, 106

(197 6), but they still must allege facts which, if true, state a claim for relief as a matter of law.
Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980).

The Court must weigh all factual

allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v.
Hernandez, 504 U.S. 25, 32 (1992). Federal courts are not required to "assume facts that are not

alleged, just because an additional factual allegation would have formed a stronger complaint."
Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004).
The Complaint

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Plaintiff brings this civil action pursuant to 42 U.S.C. § 1983. At present, plaintiff is an
inmate at the Moberly Correctional Center, but the events giving rise to the complaint occurred
when he was incarcerated at the Eastern Reception, Diagnostic and Correctional Center
("ERDCC"). Named as defendants are the Missouri Department of Corrections, corrections
officers David Hawanchak and Steven Bradley, and John Doe and Jane Doe. Plaintiff does not
specify the capacity in which he sues the defendants.
Plaintiff alleges that he was punished for making a threat, in that he was placed in
segregation for 300 days. Plaintiff explains that what was perceived as a threat was actually a
lyric from a rap song that was allowed by the prison. Plaintiff claims he was denied a witness,
and that all his evidence was ignored. He also claims that he had to attend his parole hearing in
shackles and restraints. He seeks monetary compensation for each day he spent in segregation,
and for the effect on his parole.
When plaintiff filed the instant complaint, he neither paid the filing fee nor sought leave
to proceed in forma pauperis. However, giving plaintiff the opportunity to move for in forma

pauperis status would be futile. This is the second § 1983 action plaintiff has filed to raise these
See Smotherman v. Missouri Department of

same claims against these same defendants.

Corrections, No. 4:17-cv-1982-JAR (E.D. Mo. Jul. 17, 2017) (hereafter Smotherman

1).1

On

April 9, 2017, the Court dismissed plaintiff's complaint pursuant to 28 U.S.C. § 1915(e)(2)(B),
after finding that it was legally frivolous and/or failed to state a claim upon which relief could be
1

In Smotherman I, plaintiff was proceeding prose and informa pauperis. He alleged that, while incarcerated at
ERDCC in July of2015, defendant Hawanchak searched plaintiff's cell, and found words written on plaintiff's cell
wall, and a piece of paper containing threatening language in plaintiff's trash can. Plaintiff claimed that the words
on the paper were song lyrics from an approved list of music at the prison, and the words on the wall were there
prior to him being assigned to the cell. However, Hawanchak wrote plaintiff up for an alleged threat and for
destroying state property. Plaintiff was given three-hundred (300) days in administrative segregation, and he lost
"good time" credit. Plaintiff claimed he was not given due process during the hearing on his conduct violation, and
he claimed that, because he was in administrative segregation, he was taken to his parole hearing in shackles and
restraints. He sought monetary damages for loss of his good time credits, as well as the time he spent in
administrative segregation.

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granted. If plaintiff were proceeding in forma pauperis in the instant case, the Court's prior
dismissal of Smotherman I would have res judicata effect on the determination of frivolity. See
Waller v. Groose, 38 F.3d 1007, 1008 (8th Cir. 1994) (per curiam) (citing Denton v. Hernandez,

504 U.S. 25 (1992)). Therefore, the Court will review the complaint pursuant to 28 U.S.C. §
1915A.
Discussion

Having thoroughly reviewed and liberally construed the complaint, the Court has
determined that it must be dismissed. Defendant Missouri Department of Corrections is an entity
of the State of Missouri, Walker v. Missouri Dept. of Corrections, 213 F.3d 1035, 1036 (8th Cir.
2000), and as such is not a "person" subject to suit under§ 1983. Will v. Michigan Dept. of State
Police, 491 U.S. 58, 71 (1989). In addition, it has eleventh amendment immunity from suit in

federal court, unless it has waived immunity. Alabama v. Pugh, 438 U.S. 781, 782 (1978).
Plaintiff does not allege, nor is it apparent, that the Missouri Department of Corrections has
waived immunity. Eleventh amendment immunity applies to all suits against the state, whether
in law or equity, for damages or for any other relief. Cory v. White, 457 U.S. 85, 91 (1982).
Therefore, the complaint is subject to dismissal as to defendant Missouri Department of
Corrections.
In the caption of the instant complaint, plaintiff named David Hawanchak and Steven
Bradley as defendants. However, in setting forth his claims for relief, plaintiff does not mention
them, much less allege that either of them was personally involved in the alleged constitutional
violations. To be cognizable under § 1983, a claim must allege that the defendant was personally
involved in or directly responsible for the incidents that deprived the plaintiff of his
constitutional rights. Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985); see also Madewell

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v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) ("Liability under § 1983 requires a causal link
to, and direct responsibility for, the alleged deprivation of rights.").

The Court therefore

concludes that the complaint fails to state any cognizable claims against defendants Hawanchak
or Bradley, and is subject to dismissal as to these defendants. See Potter v. Clark, 497 F .2d
1206, 1207 (7th Cir. 1974) ("Where a complaint alleges no specific act or conduct on the part of
the defendant and the complaint is silent as to the defendant except for his name appearing in the
caption, the complaint is properly dismissed, even under the liberal construction to be given pro
se complaints"); see also Krych v. Hvass, 83 F. App'x 854, 855 (8th Cir. 2003) (affirming
dismissal of pro se complaint against defendants who were merely listed as defendants in the
caption and there were no allegations of constitutional harm against them).
Plaintiff also fails to state whether Hawanchak and Bradley are being sued in their
official or individual capacities.

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). The Court must therefore construe
plaintiffs claims against Hawanchak and Bradley as against the governmental entity that
employs them, which in this case is the State of Missouri. Will v. Michigan Dep 't of State

Police, 491 U.S. 58, 71 (1989) (Naming an official in his or her official capacity is the equivalent
of naming the entity that employs the official); see also Bankhead v. Knickrehm, 360 F.3d 839,
844 (8th Cir. 2004). As plaintiff seeks only monetary relief, his claims against these State of
Missouri actors are legally frivolous. See Will, 491 U.S. at 71.
Plaintiff has also named two "Doe" defendants. Generally, fictitious parties may not be
named as defendants in a civil action. Phelps v. United States, 15 F.3d 735, 739 (8th Cir. 1994).

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An action may proceed against a party whose name is unknown, however, if the complaint

makes sufficiently specific allegations to permit identification of the party after reasonable
discovery. Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985). In this case, plaintiff has failed
to make specific allegations as to each Doe defendant such that their identities could be
ascertained after reasonable discovery. Therefore, this action cannot proceed against them. In
addition, as with defendants Hawanchak and Bradley, plaintiff simply named John Doe and Jane
Doe as defendants without alleging that either of them engaged in any wrongdoing. As noted
above, "[l]iability under § 1983 requires a causal link to, and direct responsibility for, the alleged
deprivation of rights." Madewell, 909 F.2d at 1208; see also Martin, 780 F.2d at 1338.
The complaint is also subject to dismissal because it fails to state any claims of
constitutional significance. Plaintiff claims he was wrongfully placed in segregation. For the
Due Process Clause to be implicated, an inmate subjected to segregation must have been
subjected to "atypical and significant hardship ... in relation to the ordinary incidents of prison
life." Sandin v. Conner, 515 U.S. 472 (1995). In order to determine whether plaintiff "possesses
a liberty interest, [the Court must] compare the conditions to which [plaintiff] was exposed in
segregation with those he ... could 'expect to experience as an ordinary incident of prison life."'
Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (quoting Beverati v. Smith, 120 F.3d 500,
503 (4th Cir. 1997)). In this context, the Court "do[es] not consider the procedures used to
confine the inmate in segregation." Id. (citing Kennedy v. Blankenship, 100 F.3d 640, 643 (8th
Cir. 1996)).
Therefore, for plaintiff "to assert a liberty interest, he must show some difference
between [the] conditions in segregation and the conditions in the general population which
amounts to an atypical and significant hardship." Id. In the case at bar, plaintiff makes no such

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assertions. In addition, plaintiffs allegations do not indicate that he suffered a hardship that may
conceivably create a liberty interest as indicated by case law. See Sandin, 515 U.S. at 485-86 (no
atypical and significant hardship where inmate spent thirty days in solitary confinement);
Hemphill v. Delo, 124 F.3d 208 (8th Cir. 1997) (unpublished) (same; four days locked in housing
unit, thirty days in disciplinary segregation, and approximately 290 days in administrative
segregation); Freitas v. Ault, 109 F.3d 1335, 1337-38 (8th Cir. 1997) (same; ten days
administrative segregation and thirty days on "on-call" status, as well as loss of higher paying
job and numerous privileges); Wycoff v. Nichols, 94 F.3d 1187, 1190 (8th Cir. 1996) (same; ten
days disciplinary detention and 100 days in maximum-security cell); Moorman v. Thalacker, 83
F.3d 970, 973 (8th Cir. 1996) (same; fifteen days of highest-level disciplinary detention and 107
days of less-restrictive disciplinary detention).
Plaintiff can also be understood to assert a claim regarding the loss of parole. However, a
Missouri prisoner's allegations challenging denial of parole or the lost possibility of parole do
not state a claim under 42 U.S.C. § 1983. In Greenholtz v. Inmates of Nebraska Penal &
Corrections, 442 U.S. 1, 9-11 (1979), the Supreme Court held that an inmate does not have a
constitutionally-protected liberty interest in the possibility of parole. In addition, the United
States Court of Appeals for the Eighth Circuit has held that Missouri's parole statutes create no
liberty interest in parole. Adams v. Agniel, 405 F.3d 643, 645 (8th Cir. 2005).
Therefore, for all of the foregoing reasons, this case will be dismissed pursuant to 28
U.S.C. § 1915A(b).
Accordingly,

IT IS HEREBY ORDERED that this action is DISMISSED pursuant to 28 U.S.C.
§ 1915A(b). A separate order of dismissal will be entered herewith.

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IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this 21st day of June, 2018.

.ROSS
D STATES DISTRICT JUDGE

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