United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
M. ROSS UNITED STATES DISTRICT JUDGE.
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.
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. § l9l5A(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, 461-63 (E.D. N.C. 1987),
ajff'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).
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.
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.
se complaints are to be liberally construed, Estelle
v. Gamble, 429 U.S. 97, 106 (1976), 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).
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
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.
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 same claims against these same defendants.
See Smotherman v. Missouri Department of
Corrections, No. 4:17-cv-1982-JAR (E.D. Mo. Jul. 17,
2017) (hereafter Smotherman I)On April 9, 2017,
the Court dismissed plaintiffs 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 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.
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.
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 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 Fed.Appx. 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).
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