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Scott v. Russell

United States District Court, E.D. Missouri, Eastern Division

September 10, 2014

KERWIN D. SCOTT, Plaintiff,
v.
TERRY RUSSELL, et al., Defendants.

MEMORANDUM AND ORDER

AUDREY G. FLEISSIG, District Judge.

Plaintiff, a Missouri state prisoner incarcerated at the Eastern Reception, Diagnostic, and Correctional Center ("ERDCC"), brings this action against the following correctional officers and their supervisors: Defendants Steve Browers, Stephen McGee, Robert Harris, Mary Storz, Carl Brawley, Stanley Payne, Joe Hoffmiester, Terry Russell, Henry Boatright, Dwayne Kempker, Jerry Morgan, Ryan Weber, and John/Jane Does No. 1-10. Plaintiff asserts two counts under 42 U.S.C. § 1983, charging violations of his constitutional rights arising from two separate incidents of assault involving Defendants.

Now before the Court are two motions to dismiss brought by Defendants. In the first motion, Defendants Payne, Hoffmiester, Russell, and Kempker seek to dismiss the claims against them in both Counts for failure to state a claim. (Doc. No. 80.) This motion also seeks to dismiss the claims against all of the Defendants named in Count II for misjoinder. The second motion similarly seeks to dismiss the claims against all Defendants named in Count II for misjoinder. (Doc. No. 65.) For the reasons set forth below, the claims against Defendants Payne, Hoffmiester, Russell, and Kempker in both Counts shall be dismissed without prejudice for failure to state a claim, and the claims against the remaining Defendants named in Count II shall be dismissed without prejudice for misjoinder.

BACKGROUND

Plaintiff filed this 42 U.S.C. § 1983 action on February 8, 2013. (Doc. No. 1.) At that time, he was proceeding pro se and filed a motion for leave to proceed in forma pauperis. On March 4, 2013, after Plaintiff attempted to amend his complaint by interlineation, the Court granted Plaintiff leave to file an amended complaint. (Doc. No. 12.) Plaintiff filed a pro se first amended complaint on March 28, 2013. (Doc. No. 19.)

The first amended complaint alleged that on December 18, 2011, Defendants Browers, Harris, and McGee (correctional officers) physically assaulted Plaintiff, at the direction of Defendants John Doe No. 1 (shift commander at ERDCC on that date) and Brawley (Sergeant), while Defendant Storz (correctional officer) filmed the incident, all in violation of Plaintiff's constitutional rights under the Eighth and Fourteenth Amendments. (Doc. No. 19 at 8-19.)

The first amended complaint further alleged that Defendants Kempker (Deputy Division Director of Missouri Department of Corrections), Russell (Warden), Hoffmiester (Assistant Warden), and Payne (Functional Unit Manager) (collectively, "Supervisor Defendants") violated Plaintiff's constitutional rights in the following ways: they failed to "properly train" and supervise their subordinates; they "had actual knowledge of a substantial risk of serious harm and failed to respond reasonably"; Defendant Payne lied to Plaintiff's sister about the assault and denied Plaintiff's internal resolution request; Defendants Russell and Hoffmiester denied Plaintiff's grievance; and Defendant Kempker denied Plaintiff's grievance appeal. (Doc. No. 19 at 19-24.) The first amended complaint named all Defendants in their individual and official capacities.

On June 5, 2013, the Court granted Plaintiff's motion to proceed in forma pauperis and, pursuant to 28 U.S.C. § 1915(e)(2)(B), reviewed the first amended complaint for frivolity. (Doc. No. 24.) The Court held that the first amended complaint contained sufficient allegations to state claims against Defendants John Doe No. 1, Brawley, Browers, Harris, McGee, and Storz in their individual capacities under the Eighth Amendment, but not in their official capacities and not under the Fourteenth Amendment. (Doc. No. 24 at 5-6, 9-10.)

The Court also held that the first amended complaint "failed to assert any nonconclusory claims against [the Supervisor Defendants]" and failed to "set forth any facts indicating that [the Supervisor Defendants] were directly involved in or personally responsible for the violation of [Plaintiff's] constitutional rights." (Doc. No. 24 at 6-8.) Therefore, the Court dismissed the first amended complaint's claims against the Supervisor Defendants without prejudice. ( Id. at 6-9; see also Doc. No. 25.)

Plaintiff thereafter filed a motion to add parties and requested time to file a second amended complaint. (Docs. No. 28 & 40.) On August 2, 2013, the Court instructed Plaintiff to file a second amended complaint within 30 days. (Doc. No. 41.) Plaintiff filed a pro se second amended complaint on August 8, 2013 (Doc. No. 45), and the Court issued an Order instructing the Defendants not to file an answer or other responsive pleading to the second amended complaint until the Court completed its review under 28 U.S.C. § 1915 (Doc. No. 47).

On October 24, 2013, counsel Antoinette T. Schlapprizzi entered her appearance on behalf of Plaintiff. (Doc. No. 59.) Because Plaintiff obtained counsel, the Court granted Plaintiff time to file a third amended complaint, and the Court stated that it would take no action with respect to the Defendants named in Plaintiff's second amended complaint. (Doc. No. 60.)

Plaintiff's counsel, Ms. Schlapprizzi, filed the third amended complaint on Plaintiff's behalf on November 29, 2013.[1] (Doc. No. 61) The third amended complaint contains two Counts.

Count I is based on the December 18, 2011 assault that Plaintiff raised in his first amended complaint. As in the first amended complaint, Plaintiff alleges that on December 18, 2011, Defendants Browers, Harris, and McGee, acting at the direction of Defendant Brawley, entered his cell at ERDCC and assaulted him while Defendant Storz filmed the incident, in violation of Plaintiff's constitutional rights under the Eighth and Fourteenth Amendments. (Doc. No. 61 at 5.)

Count II is a new claim in which Plaintiff alleges that on November 24, 2012, Defendants Morgan, Weber, and John Doe No. 1 (all correctional officers), acting at the direction of Defendant John Doe No. 2 (correctional officer), entered Plaintiff's cell at ERDCC and physically assaulted him, also in violation of ...


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