recognizing “claims challenging an unconstitutional policy or custom, or those based on a theory of inadequate training, which is an extension of the same”
How later courts described this case
- recognizing “claims challenging an unconstitutional policy or custom, or those based on a theory of inadequate training, which is an extension of the same”
- stating that “departments or subdivisions” of local government are not “juridical entities suable as such”
- stating that district court may dismiss a pro se litigant’s action for failure to comply with a court order on its own initiative
Written by the judges who cited it.
The opinion
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 is before the Court on its own motion. On June 29, 2021, the Court directed
plaintiff Terry Glenn Hemingway, Jr. to file a second amended complaint on a Court-provided
form within thirty days. Despite being given far more than thirty days, he has failed to respond.
Therefore, for the reasons discussed below, this action will be dismissed without prejudice. See
Fed. R. Civ. P. 41(b).
Background
Hemingway 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. (Docket No. 1). 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). Hemingway did not indicate the
capacity in which Commissioner Glass, Superintendent Barnes, Unit Manager Thomas, or Officer
Hagler were sued. Along with the complaint, Hemingway filed a motion for leave to proceed in
forma pauperis. (Docket No. 3).
In the complaint, Hemingway alleged that he had been assaulted and threatened in the “4
Charlie Dayroom” of the SLCJC on August 12, 2020. (Docket No. 1 at 3). According to
Hemingway, Officer Hagler “physically assaulted him,” an “assault that was recorded by the
institution.” (Docket No. 1 at 4). Hemingway 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, he
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, Hemingway 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 Hemingway motion for leave to proceed in forma
pauperis and assessed an initial partial filing fee. (Docket No. 7). Because he 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, Hemingway 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, Hemingway 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 Hemingway 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 against
them as being made against St. Louis itself, their employer. (Docket No. 7 at 5). However, as noted
above, Hemingway had not presented a municipal liability claim.
Rather than dismissing the case outright, Hemingway 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 Hemingway a prisoner civil rights
complaint form. He was given thirty days 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).
On April 1, 2021, the Court dismissed Hemingway’s case pursuant to Fed. R. Civ. P. 41(b),
for failure to comply with the Court’s February 12, 2021 order. (Docket No. 9). At that point,
forty-eight days had elapsed since Hemingway was ordered to file an amended complaint, and he
had neither filed the amended complaint nor sought an extension of time in which to do so.
On May 3, 2021, Hemingway filed a motion asking the Court to reopen his case. (Docket
No. 10). In the motion, he stated that he had “never” received any mail from the Court. He further
asserted that he had been moved “to the work-house due to the things that have [happened] at the
St. Louis Justice Center.” He also noted that he was “just getting this mail on” April 22, 2021,
which was apparently a reference to the dismissal order. As such, he requested that the Court
reopen his case, because it “is not [his] fault” he did not receive his mail.
The Court granted the motion to reopen on May 10, 2021 and vacated the order of
dismissal. (Docket No. 11). Hemingway was again ordered to file an amended complaint within
thirty days. (Docket No. 11 at 4). As before, he was given detailed instructions on how to fill out
his complaint form, which included an advisory about indicating the capacity in which defendants
were sued, and directions on how to present his “Statement of Claim.” (Docket No. 11 at 5).
On June 10, 2021, Hemingway filed his amended complaint, as directed. (Docket No. 12).
The amended complaint named the SLCJC and Officer Hagler as defendants. (Docket No. 12 at
2-3). Once again, the Court reviewed the amended complaint under 28 U.S.C. § 1915. (Docket No.
13). As with the original complaint, the Court determined that the amended complaint was also
subject to dismissal. (Docket No. 13 at 6). Specifically, the amended complaint did not contain
any factual allegations whatsoever. That is, the section of the form complaint for Hemingway’s
“Statement of Claim” was left entirely blank. He also did not allege any injuries.
Instead of dismissing the case, the Court ordered Hemingway to file a second amended
complaint. The Clerk of Court was directed to send him a copy of the Court’s prisoner civil rights
complaint form to aid his compliance. He was given thirty days within which to submit his second
amended complaint. He 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 second amended
complaint was due by July 29, 2021.
Discussion
On June 29, 2021, the Court ordered Hemingway to file a second amended complaint on a
Court-provided form. He was given thirty days to comply. His response was due on or before July
29, 2021. In the order, the Court advised Hemingway that failure to comply would result in the
dismissal of this action without prejudice and without further notice.
The deadline for Hemingway to file his second amended complaint has expired. In point
of fact, the Court has given him substantially more than thirty days to respond. Nonetheless, he
has not submitted a second amended complaint as directed. He has also failed to file a motion with
the Court seeking an extension of time in which to comply.
“In general, pro se representation does not excuse a party from complying with a court’s
orders and with the Federal Rules of Civil Procedure.” Ackra Direct Marketing Corp. v. Fingerhut
Corp., 86 F.3d 852, 856 (8th Cir. 1996). Under Rule 41(b) of the Federal Rules of Civil Procedure,
an action may be dismissed for failure to comply with a court order. See Fed. R. Civ. P. 41(b). This
rule applies to self-represented litigants. See Brown vy. 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 Hemingway has not complied with the Court’s order of June
29, 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 June 29, 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.
has teenie
UNITED STATES DISTRICT JUDGE
Dated this 5th day of October, 2021.