United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE
the Court is plaintiff’s motion to amend his complaint,
as well as plaintiff’ second motion for injunctive
relief. Based on the foregoing reasons, plaintiff’s
motions will be denied.
a pretrial detainee at Cape Girardeau County Jail, filed the
instant action on August 21, 2019, pursuant to 42 U.S.C.
§ 1983 alleging violations of his civil rights. The
Court reviewed plaintiff’s complaint for frivolousness,
maliciousness and for failure to state a claim on August 23,
2019, and at that time the Court issued process on
plaintiff’s claims for First Amendment retaliation
against defendants Unknown Correctional Officer Dacus and
Unknown Correctional Officer Balivia in their individual
capacities. However, the Court dismissed
plaintiff’s claims against defendants Unknown Williams,
Unknown Holland, Unknown Umphlett, J.P. Mulcahy, Ruth Ann
Dickerson and Cape Girardeau County because as to these
defendants, the complaint was legally frivolous or failed to
state a claim upon which relief may be granted, or both.
Summons was returned executed on defendants Dacus and Balivia
on September 5, 2019.
gist of plaintiff’s claims in his original complaint
centered on an altercation he had with defendant Dacus on
July 28, 2019. He claims that he was taken from his living
area on July 28, 2019, cuffed up, taken to disciplinary
segregation and kept there for four hours. Plaintiff states
that he asked defendant Dacus if he was having him handcuffed
in retaliation for “the lawsuit he filed against
him.” Defendant Dacus allegedly replied, “Yes,
and retaliation for disturbing the peace, inciting a riot,
and whatever else I can write you up for.” Plaintiff
states that defendant Balivia told him when he released him
from isolation four hours later that if he kept filing legal
papers against the Jail and the Correctional Officers that
“it will only get worse for you.”
Motion to Amend the Complaint
September 13, 2019, plaintiff filed a motion to amend his
complaint. Attached to his motion to amend, plaintiff has
provided the Court with a copy of his proposed amended
complaint. In his amended complaint, plaintiff seeks to
change the entirety of his claims in this action. In re
Wireless Telephone Federal Cost Recovery Fees
Litigation, 396 F.3d 922, 928 (8th Cir. 2005) (the
filing of an amended complaint replaces the original
complaint and claims that are not realleged are deemed
named fourteen (14) individuals and entities as defendants in
the amended complaint, and his amended complaint numbers
ninety-three (93) pages. Plaintiff’s claims range from
ineffective assistance of counsel against his public defender
in state court, to an access to courts claim against all
fourteen (14) defendants. The Court notes that it dismissed
plaintiff’s access to courts claim due to
plaintiff’s failure to properly allege that he suffered
an actual injury to a pending or contemplated legal claim.
Myers v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996).
Court finds that despite plaintiff repeating the same
allegations against all fourteen (14) defendants in his
proposed amended complaint, he has still failed to allege
that he suffered an actual injury to a pending or
contemplated legal claim. Moreover, it appears that
plaintiff’s attempt to revisit this issue is nothing
more than a motion for reconsideration of the partial
dismissal entered on August 23, 2019. For these reasons, the
Court will deny plaintiff’s motion to amend his
pleading as doing so would be futile.
Motion for Injunctive Relief
filed a second motion for injunctive relief in this action
simultaneous with his motion to amend his complaint. He asks
this Court to perform an investigation into the Missouri
State Public Defender’s Office because he doesn’t
feel comfortable with his assigned public defender in his
state criminal action. Plaintiff wants this Court to
intervene in his assignment of counsel in his criminal
proceedings because he lacks faith in his public defender.
district courts may only issue writs of mandamus “in
aid of their jurisdictions . . .” 28 U.S.C.A. §
1651(a). They lack the power to issue writs of mandamus
compelling a state actor to act. See 28 U.S.C.
§ 1361 (“The district courts shall have original
jurisdiction of any action in the nature of mandamus to
compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the
plaintiff.”) Particularly, these matters cannot be
brought before this Court within a § 1983 action.
Postma v. First Fed. Sav. & Loan, 74 F.3d 160,
162 (8th Cir. 1996). “Review of state court decisions
may be had only in the Supreme Court.” Id.
Consequently, the Court will deny plaintiffs motion for
IT IS HEREBY ORDERED that plaintiffs motion
to amend his complaint [Doc. #16] is DENIED.
IS FURTHER ORDERED that plaintiffs motion for
injunctive relief [Doc. #17] is DENIED.
IS FURTHER ORDERED that an appeal of this order