United States District Court, E.D. Missouri, Northern Division
BILLY M. WALKER, Plaintiff,
GLEN BABICH, et al., Defendants.
MEMORANDUM AND ORDER
PATRICIA L. COHEN, UNITED STATES MAGISTRATE JUDGE
Billy M. Walker, a Missouri prisoner, and Defendants Glen
Babich, Thomas Pryor, Sarah Starks, Tammie Anderson, and
Corizon Health, Inc.,  filed a joint motion to amend the case
management order (“CMO”) [ECF No. 43]. Plaintiff
also filed a motion to amend the second amended complaint by
interlineation [ECF No. 40].
pursues this lawsuit under 42 U.S.C. § 1983 seeking
declaratory, monetary, and permanent injunctive relief for
Defendants' alleged care, or lack of care, of
Plaintiff's serious medical conditions, namely,
“multiple sclerosis, epilepsy, and traumatic brain
injuries.”Promptly after learning he had
misidentified a defendant, Plaintiff obtained leave to file a
second amended complaint dismissing the misidentified
defendant and naming the reportedly correct defendant,
Defendant Sarah Starks. Plaintiff filed the second amended
complaint on January 27, 2017. Defendant Starks waived service
of process and her answer is due April 10,
2017.The remaining Defendants filed an answer to
the second amended complaint.
motion to amend, Plaintiff requests leave to amend the second
amended complaint by interlineation only to add an express
statement of the capacity in which each Defendant is sued.
Specifically, Plaintiff wants to clarify that he is suing
Defendants Dr. Babich, Dr. Pryor, Ms. Starks, and Ms.
Anderson in their “personal, ” or individual,
capacities, and suing Defendant Corizon Health Inc. in its
official “and personal” capacities. Plaintiff
notes he included a statement of the capacity in which he
sued each Defendant in his original complaint but
“inadvertently failed” to include such a
statement in the second amended complaint. Additionally,
Plaintiff states, “Defendants have not raised an issue
as to the capacity in which Defendants were sued.” A
plaintiff may assert § 1983 “claims against a
public official acting in his [or her] individual capacity
and in his [or her] official capacity.” Baker v.
Chisom, 501 F.3d 920, 923 (8th Cir. 2007).
When a § 1983 complaint is silent as to the capacity in
which a defendant official is sued, the complaint is
interpreted as including only official capacity claims.
Id.; accord Alexander v. Hedback, 718 F.3d
762, 766 n. 4 (8th Cir. 2013) (noting in a §
1983 action against municipal police officers that the
“‘plaintiff must expressly and unambiguously
state . . . in the pleadings [that the lawsuit is pursued
against the defendant official in the defendant's
individual capacity], otherwise it will be assumed that the
defendant is sued only in his or her official capacity.'
Johnson v. Outboard Marine Corp., 172 F.3d 531, 535
(8th Cir. 1999).”); Veatch v. Bartels
Lutheran Home, 627 F.3d 1254, 1257 (8th Cir.
2010) (presuming in a § 1983 action that a city police
officer not “specifically name[d]” in his
individual capacity “was sued only in his official
motion does not specifically address whether a corporation
may be sued in an individual or “personal”
capacity under § 1983. Neither Corizon Health Inc., nor
any of the individual Defendants now before the Court filed a
response to Plaintiff's motion. In granting
Plaintiff's motion to amend, the Court is not addressing
or resolving any issue with regard to whether a plaintiff in
a § 1983 action may pursue an individual, or
“personal, ” capacity claim against a corporate
defendant. See generally Monell v. Department of Soc.
Servs., 436 U.S. 658, 690-91 (1978); Smith v.
Insley's Inc., 499 F.3d 875, 880 (8th
Cir. 2007); Crumpley-Patterson v. Trinity Lutheran
Hosp., 388 F.3d 588, 590-91 (8th Cir. 2004).
Court grants Plaintiff's unopposed motion to amend.
Plaintiff may file his amendment by interlineation to amend
the second amended complaint expressly to state only in what
capacity he is suing any Defendant.
their joint motion, the parties ask the Court to amend the
Case Management Order (“CMO”) to extend certain
deadlines because, they agree, “following Defendant
Starks' Answer, additional time will be necessary to
complete discovery.” In particular, the parties seek the
following deadline extensions:
extension to June 1, 2017, of the deadlines for the
completion of depositions of the parties' expert
witnesses and for the completion of all discovery;
extension to June 15, 2017 of the deadline for filing any
motion to compel and Daubert motion; and
extensions of the deadlines related to dispositive motions so
that the deadline for filing any motion to dismiss, for
summary judgment, or for judgment on the pleadings is changed
to June 30, 2017; the deadline for filing any response to
such a motion is extended to July 28, 2017; and the deadline
for filing any reply in support of such a motion is moved to
August 7, 2017. Finding good cause for the reasonable
schedule modification the parties propose, the Court grants
the joint motion. See, e.g., Fed.R.Civ.P.
after careful consideration, IT IS HEREBY ORDERED that
Plaintiffs motion to amend by interlineation [ECF No. 40] is
FURTHER ORDERED that, within ten days of the date of this
Order, Plaintiff may file an amendment by interlineation of
the second amended complaint only to clarify the capacity in
which Plaintiff sues any Defendant.
FINALLY ORDERED that the parties' joint motion [ECF No.
43] is GRANTED so that the CMO's deadlines are extended
as set forth above. In all other respects, the ...