Hardiman v. Precythe

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

NORTHERN DIVISION

ROBERT EARL HARDIMAN, II, )

)

Plaintiff, )

)

v. ) No. 2:20-cv-00057 SRC

)

ANNE L. PRECYTHE, et al., )

)

Defendants. )

Memorandum and Order

This closed civil matter is before the Court upon plaintiff Robert Earl Hardiman’s motion

to amend his complaint. After reviewing Hardiman’s motion in its entirety, the Court denies the

motion.

Background

Hardiman, an inmate at Moberly Correctional Center, filed the instant action pursuant to

42 U.S.C. § 1983 on September 24, 2020. He named the following individuals and entities as

defendants in this action: the Missouri Department of Corrections (MODOC); the Missouri Board

of Probation and Parole; Anne Precythe, the Director of MODOC; and Peg McClure, the Assistant

Division Director of MODOC. He sued defendants in their official capacities only.

Hardiman was convicted in Jackson County, Missouri, in 2014. He asserted that Judge

Burnett, his sentencing judge, unlawfully ordered the Missouri Department of Probation and

Parole to present a false and “perjured” prior probation completion assessment report against him

at his plea hearing. Hardiman stated that this report allegedly showed violations of his probation

that he had committed during his Suspended Imposition of Sentence (SIS). However, the “false

report” did not apply “to the assault and armed criminal action charges that he was ultimately

found guilty of in violation of double jeopardy.” Hardiman alleged that ultimately, he was

wrongfully found guilty, convicted and sentenced to fifteen years’ of imprisonment at the Missouri

Department of Corrections for “standing his ground” against an individual who was participating

in a “mass organized disobedience.”

Hardiman stated that while in the Missouri Department of Corrections, he was subjected

to “foul housing conditions, harassed, assaulted and denied recreation, rehabilitation and other

activities.” He also alleged that he was unlawfully kept in quarantine and lockdown due to

positive cases of COVID-19 during the pandemic. Hardiman complained that he did not feel

properly protected by defendants during the pandemic, but he failed to indicate in his complaint

why he believed this to be the case. Notably, he complained that he was not released from custody

during the pandemic. Hardiman sought damages in an amount of $750,000, as well as release

from his conviction, or clemency.

On May 27, 2021, the Court dismissed Hardiman’s complaint for frivolousness and failure

to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). Hardiman’s allegations against the

individual defendants, who were employed by the Missouri Department of Corrections, were

subject to dismissal because he had sued them in their official capacities. State officials sued in

their official capacities are suits against the entities for which the official is an agent. Elder-Keep

v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006). However, 42 U.S.C. § 1983 only allows for actions

against “persons” for a violation under color of law of another’s civil rights. McLean v. Gordon,

548 F.3d 613, 618 (8th Cir. 2008). “[N]either a State nor its officials acting in their official

capacity are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

(1989); see also Calzone v. Hawley, 866 F.3d 866, 872 (8th Cir. 2017) (stating that a “suit for

-2-

damages against a state official in his official capacity is a suit against the State, and the State is

not a person under § 1983”).

Hardiman’s allegations against the Missouri Department of Corrections and the Missouri

Board of Probation and Parole failed to allege an unlawful policy or custom by the Missouri

Department of Corrections, and therefore could not sustain a claim for relief. See Kelly v. City of

Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016) (liability of a government entity may attach if

the alleged constitutional violation resulted from (1) an official policy, (2) an unofficial custom,

or (3) a deliberately indifferent failure to train or supervise); Mick v. Raines, 883 F.3d 1075, 1089

(8th Cir. 2018); see also 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”).

Furthermore, the Court found that even if Hardiman had brought claims against the

defendants in their individual capacities, he still could not state claims for relief, as he had failed

to establish a causal link to the alleged deprivation of rights asserted in his complaint. Madewell

v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). Rather, he appeared to be asserting claims for

vicarious liability which is unavailable under 42 U.S.C. § 1983. Camberos v. Branstad, 73 F.3d

174, 176 (8th Cir. 1995).

Hardiman had also failed to satisfy both the objective and subjective elements of an Eighth

Amendment conditions of confinement claim. Instead, he described his housing conditions in a

conclusory manner, in one generalized statement, that was insufficient to set forth a claim for

relief. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hamner v. Burls, 937 F.3d 1171, 1178 (8th

Cir. 2019). And Hardiman’s allegations that he was confined to quarantine during the COVID-

-3-

19 pandemic were not per-se unconstitutional, as measures must be taken to contain the spread of

disease. See DeGidio v. Pung, 920 F.2d 525, 533 (8th Cir. 1990).

Lastly, Hardiman’s assertions regarding his alleged errors in his state court sentencing

assessment, from July of 2014, were time-barred. Sulik v. Taney County, Mo., 393 F.3d 765, 766–

67 (8th Cir. 2005); Mo.Rev.Stat. § 516.120(4).

Motion to Amend Complaint

In his motion to amend his complaint, Hardiman asserts that he “did not realize [he] did

not file the defendants correctly.” He states, “I understand [this] can be adjusted by the court of

law.” Hardiman is presumably referring to the official capacity claims he asserted against

defendants.

He also asserts that he is now sharing a cell with a “dangerous offender.” Hardiman

asserts that he wishes to “adjust his demand,”1 but also “correct his complaint” as to capacity. He

further asserts that he never wished to sue the Director of the Missouri Department of Corrections

or the Assistant Director of the Missouri Department of Corrections. Rather, he only wanted to

sue the Missouri Department of Corrections and the Missouri Board of Probation and Parole.

Hardiman also asserts he believes the Judge in his state court action is responsible for a

form of “double jeopardy” in a sentencing matter to the Missouri Department of Corrections.

Discussion

Although a district court “should freely give leave [to amend] when justice so requires,

Fed. R. Civ. P. 15(a)(2), plaintiffs do not enjoy an absolute or automatic right to amend” a

1Hardiman states that he wishes to adjust his demand to “no period of time to be paid the amount [he] asked for, but

to be paid directly to [him].” This change in his request for relief has no bearing on whether he is entitled to amend

his complaint pursuant to Federal Rule of Civil Procedure 15(a).

-4-

complaint. United States ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d 818, 822 (8th Cir. 2009)

(internal quotation omitted). Moreover, “interests of finality dictate that leave to amend should

be less freely available after a final order has been entered.” Id. at 823; see also In re Medtronic,

Inc., Sprint Fidelis Leads Prods. Liab. Litig., 623 F.3d 1200, 1208 (8th Cir. 2010) (“Post-dismissal

motions to amend are disfavored.”). Lastly, to preserve the right to amend the complaint, “a

party must submit the proposed amendment along with its motion.” Clayton v. White Hall

School Dist., 778 F.2d 457, 460 (8th Cir. 1985) (internal citation omitted).

Hardiman failed to attach a proposed amended complaint to his motion to amend, and for

this reason alone, the Court denies his post-dismissal motion. Moreover, although Hardiman has

proposed bringing claims against defendants in their individual capacities, the Court addressed his

claims against defendants in their individual capacities in its May 27, 2021 Memorandum and

Order, and found that he failed to sufficiently allege those claims.

Furthermore, the Court has already addressed the futility of Hardiman’s § 1983 claims

relating to alleged errors in his sentencing assessment which purportedly occurred prior to his state

court criminal case in July of 2014. Hardiman has not purported to change his allegations relating

to this claim for relief from those already plead in his original complaint.

To that end, the Court finds that Hardiman’s motion to amend his complaint would be futile

and not taken in good faith.

Accordingly, the Court denies Hardiman’s post-dismissal [13] post-dismissal motion for

leave to amend his complaint. The Court further orders that an appeal from this dismissal would

not be taken in good faith.

So Ordered this 12th day of July, 2021.

-5-

ee es fe. CSS

STEPHEN R. CLARK

UNITED STATES DISTRICT JUDGE

-6-