Hemingway v. Glass et al

Filing 8

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is DISMISSED without prejudice for failure to comply with the Court's order of February 12, 2021. See Fed. R. Civ. P. 41(b). A separate order of dismissal will be entered herewith. IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge Rodney W. Sippel on 04/01/2021. (ANP)

Case: 4:20-cv-01537-RWS Doc. #: 8 Filed: 04/01/21 Page: 1 of 4 PageID #: 44

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TERRY GLENN HEMINGWAY, JR.,
Plaintiff,
v.
DALE GLASS, et al.,

Defendants.

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No. 4:20-cv-01537-RWS

MEMORANDUM AND ORDER
This matter comes before the Court on its own motion. On February 12, 2021, the Court
ordered plaintiff to file an amended complaint within thirty days. (Docket No. 7). Plaintiff has
failed to comply. Therefore, for the reasons discussed below, this action will be dismissed without
prejudice. See Fed. R. Civ. P. 41(b).
Background
Plaintiff is a self-represented litigant who is currently incarcerated at the St. Louis City
Justice Center (SLCJC) in St. Louis, Missouri. On October 26, 2020, he filed a prisoner civil rights
complaint pursuant to 42 U.S.C. § 1983. The complaint named the SLCJC, Commissioner Dale
Glass, Superintendent Adrian Barnes, Unit Manager Warren Thomas, and Officer Cortez Hagler
as defendants. (Docket No. 1 at 1-3). Plaintiff did not indicate the capacity in which Commissioner
Glass, Superintendent Barnes, Unit Manager Thomas, or Officer Hagler were sued. Along with
the complaint, plaintiff also filed a motion for leave to proceed in forma pauperis. (Docket No. 3).
In the complaint, plaintiff alleged that he was assaulted and threatened in the “4 Charlie
Dayroom” of the SLCJC on August 12, 2020. (Docket No. 1 at 3). According to plaintiff, Officer
Hagler “physically assaulted him,” an “assault that was recorded by the institution.” (Docket No.

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1 at 4). Plaintiff stated that he “suffered minor injuries,” including a “busted lip and swelling to
the face.” (Docket No. 1 at 3-4). Though his injuries were minor, plaintiff claimed that he suffered
a “deliberate violation to [his] constitutional protections.” (Docket No. 1 at 4). He further stated
that following the assault, he was “deliberately” punished by the SLCJC by placing him on “assault
status” and “administrative segregation status as punishment.”
As a result of this incident, plaintiff requested $100,000,000 in damages, and for the SLCJC
to be shut down. (Docket No. 1 at 5).
On February 12, 2021, the Court granted plaintiff’s motion for leave to proceed in forma
pauperis, and assessed an initial partial filing fee. (Docket No. 7). Because plaintiff was proceeding
in forma pauperis, the Court reviewed his complaint pursuant to 28 U.S.C. § 1915. Based on that
review, the Court determined that the complaint was deficient and subject to dismissal. (Docket
No. 7 at 4). Specifically, plaintiff had sued the SLCJC, which was not a suable entity. See Ketchum
v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (stating that “departments or
subdivisions” of local government are not “juridical entities suable as such”). Even if St. Louis
City was substituted as a defendant, plaintiff had not alleged a municipal liability claim. See Marsh
v. Phelps Cty., 902 F.3d 745, 751 (8th Cir. 2018) (recognizing “claims challenging an
unconstitutional policy or custom, or those based on a theory of inadequate training, which is an
extension of the same”).
With regard to Commissioner Glass, Superintendent Barnes, Unit Manager Thompson, and
Officer Hagler, the Court noted that plaintiff had not indicated the capacity in which these
defendants were sued. As such, the complaint was interpreted as including only official capacity
claims. See Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007). In an official capacity claim against
an individual, the claim is actually “against the governmental entity itself.” See White v. Jackson,

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865 F.3d 1064, 1075 (8th Cir. 2017). (Docket No. 7 at 4-5). Because these defendants were
employed by the City of St. Louis, the Court had to treat the official capacity claims as being made
against St. Louis itself. (Docket No. 7 at 5). However, plaintiff had not presented a municipal
liability claim.
Rather than dismissing the case outright, plaintiff was given an opportunity to file an
amended complaint. The Court’s order contained instructions on the drafting of an amended
complaint, and the Clerk of Court was directed to send plaintiff a prisoner civil rights complaint
form. Plaintiff was given thirty days in which to comply, and advised that his failure to comply
would result in the dismissal of this action without prejudice and without further notice. (Docket
No. 7 at 8).
Discussion
As previously noted, on February 12, 2021, the Court ordered plaintiff to file an amended
complaint within thirty days. The amended complaint was due on or before March 15, 2021. In
the order, plaintiff was advised that failure to comply with the Court’s order would result in the
dismissal of this action without prejudice and without further notice.
The deadline for plaintiff to file his amended complaint has expired. In fact, the Court has
given plaintiff more than thirty days in which to respond. Nonetheless, plaintiff has failed to file
an amended complaint as directed. He has also failed to file a motion with the Court seeking an
extension of time in which to comply. Indeed, the Court has had no further communications from
plaintiff whatsoever.
Under Rule 41(b), an action may be dismissed for failure to comply with a court order. See
Fed. R. Civ. P. 41(b). See also Brown v. Frey, 806 F.2d 801, 803 (8th Cir. 1986) (stating that district
court may dismiss a pro se litigant’s action for failure to comply with a court order on its own

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initiative). Because plaintiff has not complied with the Court’s order of February 12, 2021, or filed
any type of motion seeking an extension of time in which to comply, the Court will dismiss this
action without prejudice.
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED without prejudice for failure
to comply with the Court’s order of February 12, 2021. See Fed. R. Civ. P. 41(b). A separate order
of dismissal will be entered herewith.
IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in
good faith.
Dated this 1st day of April, 2021.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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