United States District Court, Eastern District of Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
This matter is before the Court on plaintiff’s motions to set aside partial summary judgment, add party defendants, and amend the first amended complaint. The motions have been briefed and the matter is ripe for disposition. For the following reasons, the Court will grant the motion to set aside partial summary judgment, deny the motion to add party defendants, and grant in part and deny in part the motion for leave to amend the first amended complaint
Plaintiff Roy Phillips, an inmate at the Northeast Correctional Center (“NECC”), filed this action pursuant to 42 U.S.C. §§ 1983 and 1985 against Missouri Department of Corrections employees James Hurley, Larry Allen, Tyree Butler, Kristin Cutt, John Hagerty, Janet Wilson, Marsha Kiel, Amber Grote, Donna Kearse, and Dana Jost. Plaintiff sued defendants in both their individual and official capacities. Plaintiff’s first amended complaint includes five counts: count I alleges violations regarding plaintiff’s placement, and continuation, in administrative segregation; count II alleges a failure to replace broken eye glasses; count III alleges interference with legal mail; count IV alleges failure to replace or compensate for lost property (ear buds and cotton shorts); and count V alleges failure to provide necessary medical care.
Upon review of plaintiff’s motion for leave to file the first amended complaint, this Court dismissed the following claims: (1) the official capacity claims against Kearse, Jost, Butler, Cutt, and Allen; (2) the loss of property claims relative to the ear buds and cotton shorts stated in count IV; and (3) the § 1985 claims. The Court allowed the filing of the first amended complaint and issued service of process on plaintiff’s remaining § 1983 claims based on alleged violations of plaintiff’s First, Eighth, and Fourteenth Amendment rights. Plaintiff was allowed to proceed against defendants Hurley, Wilson, Kiel, Grote, Hagerty, Kearse, Jost, Butler, Cutt, and Allen in their individual capacities and, as to the claim for injunctive relief on his claim of interference with legal mail, against defendants Hurley, Wilson, Kiel, Grote, and Hagerty in their official capacities. Thereafter, defendant Janet Wilson was dismissed for plaintiff’s failure to serve process as required by Federal Rule of Civil Procedure 4(m).
Subsequently, defendants Hurley, Butler, Cutt and Allen filed a motion to dismiss count I for failure to exhaust administrative remedies. Defendant Hurley filed a motion to dismiss count II for failure to state a claim. Defendants Kiel, Grote, Hagerty, and Hurley filed a motion to dismiss count III for failure to exhaust administrative remedies and failure to state a claim. As to count I, the Court found that plaintiff did not dispute the evidence offered by defendants that he had failed to exhaust administrative remedies as to his claim of unlawful placement, and continuation, in administrative segregation.
Pursuant to Rule 12(d) of the Federal Rules of Civil Procedure, the Court converted the motion to dismiss to a motion for summary judgment and entered judgment in favor of defendants as to the claims in count I of the amended complaint. The Court denied the motion to dismiss count II as to the claim against defendant Hurley but granted the motion to dismiss as to the alleged violations of the Missouri constitution as a basis for plaintiff’s § 1983 claim. On the motion to dismiss count III, the Court granted the motion as to defendant Hagerty and to the extent plaintiff alleged violations of the Missouri constitution as a basis for his § 1983 claim but denied the motion as to defendants Kiel, Grote, and Hurley. Thereafter, defendants Donna Kearse and Dana Jost were dismissed for plaintiff’s failure to serve process as required by Federal Rule of Civil Procedure 4(m).
II. Motion to Set Aside Partial Summary Judgment
Plaintiff moves this Court to set aside the summary judgment entered on count I of his first amended complaint. The Court entered judgment for defendants because plaintiff did not dispute the affidavit testimony submitted by defendants that plaintiff did not file a grievance with regard to his placement, or the continuation of his placement, in administrative segregation. In his response to the defendant’s motion to dismiss on this basis, plaintiff argued that his amended complaint included claims under the Missouri constitution and that the exhaustion requirement did not apply to his state law claims. Plaintiff’s amended complaint, however, alleged only § 1983 claims and any references to violations of the state constitution do not state a claim under § 1983. Doe v. Gooden, 214 F.3d 952, 955 (8th Cir. 2000); Ebmeier v. Stump, 70 F.3d 1012, 1013 (8th Cir. 1995). Accordingly, this Court found that it was undisputed that plaintiff failed to exhaust his administrative remedies with regard to his § 1983 claim in count I of the first amended complaint. Because the Court relied on materials outside the pleadings in coming to its conclusion that plaintiff had not exhausted his administrative remedies, the motion was converted to one for summary judgment and judgment was entered for defendants on count I.
Plaintiff now argues that the summary judgment should be set aside because he had no notice of the conversion and was not given an opportunity to respond to the materials submitted by defendants. Further, plaintiff has submitted an affidavit alleging he attempted to file an Informal Resolution Request (IRR), the first step in the administrative remedy process, by passing notes to correctional officers. Plaintiff argues that failure to exhaust administrative remedies was not a bar to his claim because no such remedies were fairly available to him.
Based on recent Eighth Circuit precedent, it appears that dismissal without prejudice, and not summary judgment, was the proper remedy based on the finding that plaintiff failed to exhaust administrative remedies for his § 1983 claim. Porter v. Sturm, no. 13-2729 (8th Cir. March 23, 2015). Accordingly, this Court will set aside the partial summary judgment. Further, based on the allegations in plaintiff’s motion and affidavit, the Court will not modify its prior ruling to enter a dismissal without prejudice. Instead, plaintiff will be allowed to proceed with the allegations in count I of the first amended complaint.
III. Motion to Add Party Defendants
A. Kearse and Jost
Plaintiff seeks to add as defendants Donna Kearse and Dana Jost, who were previously dismissed for failure to serve process as required by Federal Rule of Civil Procedure 4(m). In support of this request, plaintiff states only that “counsel for plaintiff has obtained additional information based upon which they believe such defendants may personally be served with process, and/or notice of waiving service under FRCP 4(d).” Plaintiff fails to state any reason why service could not be effected on Kearse and Jost in the one year period of time following the filing of the complaint until they were dismissed. Given plaintiff’s failure to state good cause or ...