Hemingway v. Glass

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

TERRY GLENN HEMINGWAY, JR., )

)

Plaintiff, )

)

v. ) No. 4:20-cv-01537-RWS

)

DALE GLASS, et al., )

)

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on its own motion. On February 12, 2021, the Court

ordered plaintiff to file an amended complaint within thirty days. (Docket No. 7). Plaintiff has

failed to comply. Therefore, for the reasons discussed below, this action will be dismissed without

prejudice. See Fed. R. Civ. P. 41(b).

Background

Plaintiff is a self-represented litigant who is currently incarcerated at the St. Louis City

Justice Center (SLCJC) in St. Louis, Missouri. On October 26, 2020, he filed a prisoner civil rights

complaint pursuant to 42 U.S.C. § 1983. The complaint named the SLCJC, Commissioner Dale

Glass, Superintendent Adrian Barnes, Unit Manager Warren Thomas, and Officer Cortez Hagler

as defendants. (Docket No. 1 at 1-3). Plaintiff did not indicate the capacity in which Commissioner

Glass, Superintendent Barnes, Unit Manager Thomas, or Officer Hagler were sued. Along with

the complaint, plaintiff also filed a motion for leave to proceed in forma pauperis. (Docket No. 3).

In the complaint, plaintiff alleged that he was assaulted and threatened in the “4 Charlie

Dayroom” of the SLCJC on August 12, 2020. (Docket No. 1 at 3). According to plaintiff, Officer

Hagler “physically assaulted him,” an “assault that was recorded by the institution.” (Docket No.

1 at 4). Plaintiff stated that he “suffered minor injuries,” including a “busted lip and swelling to

the face.” (Docket No. 1 at 3-4). Though his injuries were minor, plaintiff claimed that he suffered

a “deliberate violation to [his] constitutional protections.” (Docket No. 1 at 4). He further stated

that following the assault, he was “deliberately” punished by the SLCJC by placing him on “assault

status” and “administrative segregation status as punishment.”

As a result of this incident, plaintiff requested $100,000,000 in damages, and for the SLCJC

to be shut down. (Docket No. 1 at 5).

On February 12, 2021, the Court granted plaintiff’s motion for leave to proceed in forma

pauperis, and assessed an initial partial filing fee. (Docket No. 7). Because plaintiff was proceeding

in forma pauperis, the Court reviewed his complaint pursuant to 28 U.S.C. § 1915. Based on that

review, the Court determined that the complaint was deficient and subject to dismissal. (Docket

No. 7 at 4). Specifically, plaintiff had sued the SLCJC, which was not a suable entity. See Ketchum

v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (stating that “departments or

subdivisions” of local government are not “juridical entities suable as such”). Even if St. Louis

City was substituted as a defendant, plaintiff had not alleged a municipal liability claim. See Marsh

v. Phelps Cty., 902 F.3d 745, 751 (8th Cir. 2018) (recognizing “claims challenging an

unconstitutional policy or custom, or those based on a theory of inadequate training, which is an

extension of the same”).

With regard to Commissioner Glass, Superintendent Barnes, Unit Manager Thompson, and

Officer Hagler, the Court noted that plaintiff had not indicated the capacity in which these

defendants were sued. As such, the complaint was interpreted as including only official capacity

claims. See Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007). In an official capacity claim against

an individual, the claim is actually “against the governmental entity itself.” See White v. Jackson,

865 F.3d 1064, 1075 (8th Cir. 2017). (Docket No. 7 at 4-5). Because these defendants were

employed by the City of St. Louis, the Court had to treat the official capacity claims as being made

against St. Louis itself. (Docket No. 7 at 5). However, plaintiff had not presented a municipal

liability claim.

Rather than dismissing the case outright, plaintiff was given an opportunity to file an

amended complaint. The Court’s order contained instructions on the drafting of an amended

complaint, and the Clerk of Court was directed to send plaintiff a prisoner civil rights complaint

form. Plaintiff was given thirty days in which to comply, and advised that his failure to comply

would result in the dismissal of this action without prejudice and without further notice. (Docket

No. 7 at 8).

Discussion

As previously noted, on February 12, 2021, the Court ordered plaintiff to file an amended

complaint within thirty days. The amended complaint was due on or before March 15, 2021. In

the order, plaintiff was advised that failure to comply with the Court’s order would result in the

dismissal of this action without prejudice and without further notice.

The deadline for plaintiff to file his amended complaint has expired. In fact, the Court has

given plaintiff more than thirty days in which to respond. Nonetheless, plaintiff has failed to file

an amended complaint as directed. He has also failed to file a motion with the Court seeking an

extension of time in which to comply. Indeed, the Court has had no further communications from

plaintiff whatsoever.

Under Rule 41(b), an action may be dismissed for failure to comply with a court order. See

Fed. R. Civ. P. 41(b). See also Brown v. Frey, 806 F.2d 801, 803 (8th Cir. 1986) (stating that district

court may dismiss a pro se litigant’s action for failure to comply with a court order on its own

initiative). Because plaintiff has not complied with the Court’s order of February 12, 2021, or filed

any type of motion seeking an extension of time in which to comply, the Court will dismiss this

action without prejudice.

Accordingly,

IT IS HEREBY ORDERED that this action is DISMISSED without prejudice for failure

to comply with the Court’s order of February 12, 2021. See Fed. R. Civ. P. 41(b). A separate order

of dismissal will be entered herewith.

IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in

good faith.

Dated this Ist day of April, 2021.

Qe Joye

RODNEHEY W. SIPPEL

UNITED STATES DISTRICT JUDGE