# Wallace v. Upton

> District Court, E.D. Missouri · February 9, 2022

URL: https://www.frixlaw.com/law-library/cases/10236473

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** February 9, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10236473

## How later opinions describe it (automated extraction)

- stating that federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint”
- stating that § 1983 liability “requires a causal link to, and direct responsibility for, the deprivation of rights”
- stating that the essential function of a complaint “is to give the opposing party fair notice of the nature and basis or grounds for a claim”
- stating that court must accept factual allegations in complaint as true, but is not required to “accept as true any legal conclusion couched as a factual allegation”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ROBERT E. WALLACE, JR., )
)
Plaintiff, )
)
v. ) No. 4:21-CV-01099-JAR
)
ALEX DOWNEY, et al., )
)
Defendants. )

MEMORANDUM AND ORDER
This matter comes before the Court on review of two separate amended complaints filed
by plaintiff Robert E. Wallace, Jr. For the reasons discussed below, plaintiff will be directed to file
a third amended complaint that clearly indicates the defendant he intends to sue, and includes the
claims he wishes to present.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To
state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief,
which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
Determining whether a complaint states a plausible claim for relief is a context-specific task that
requires the reviewing court to draw upon judicial experience and common sense. Id. at 679. The
court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber, 820
F.3d 958, 964 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73
(8th Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not
required to “accept as true any legal conclusion couched as a factual allegation”).
When reviewing a pro se complaint under 28 U.S.C. § 1915(e)(2), the Court must give it

the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal
construction” means that if the essence of an allegation is discernible, the district court should
construe the plaintiff’s complaint in a way that permits his or her claim to be considered within
the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even
pro se complaints are required to 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). See also Stone v. Harry, 364 F.3d
912, 914-15 (8th Cir. 2004) (stating that federal courts are not required to “assume facts that are
not alleged, just because an additional factual allegation would have formed a stronger
complaint”). In addition, affording a pro se complaint the benefit of a liberal construction does not
mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes

by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).
Background
Plaintiff is a self-represented litigant who is currently incarcerated at the Potosi
Correctional Center in Mineral Point, Missouri. On September 3, 2021, he filed a civil action
pursuant to 42 U.S.C. § 1983, naming Correctional Officers Alex Downey and Caelan Upton as
defendants. (Docket No. 1). Plaintiff did not indicate the capacity in which defendants were sued.
The complaint contained allegations regarding two separate incidents of excessive force.
In the “Statement of Claim,” plaintiff asserted that on June 19, 2021, Officer Downey “used
excessive force” by slamming plaintiff’s face against the wall and floor, chipping his tooth. Then,
on June 27, 2021, plaintiff alleged that Officer Upton engaged in the “excessive use of force” by
slamming his hand in the food port, causing minor bleeding and lacerations on his right forearm.
Based on these incidents, plaintiff sought unspecified “punitive monetary damages” and
unspecified “injunctive relief.”

Along with the complaint, plaintiff filed a motion for leave to proceed in forma pauperis.
(Docket No. 2). On January 5, 2022, the Court granted the motion and assessed an initial partial
filing fee. (Docket No. 6). Because plaintiff was proceeding in forma pauperis, the Court reviewed
his complaint under 28 U.S.C. § 1915.
Based on that review, the Court determined that plaintiff’s complaint was subject to
dismissal for two reasons. First, as he had not indicated the capacity in which defendants were
sued, they were assumed to be sued in their official capacities only. However, plaintiff had failed
to state a claim against the State of Missouri, defendants’ employer. Second, even assuming that
defendants were sued in their individual capacities, plaintiff had not demonstrated the use of
excessive force, because he had presented no facts alleging that the officers had acted sadistically

and maliciously, rather than in a good faith effort to maintain or restore discipline.
Rather than dismissing the case, the Court directed plaintiff to file an amended complaint
according to the instructions set forth in the order. On January 28, 2022, the Court received an
amended complaint against defendant Alex Downey. (Docket No. 7). On January 31, 2022, the
Court received a second amended complaint against defendant Caelan Upton. (Docket No. 8).
The Amended Complaint
The amended complaint is brought pursuant to 42 U.S.C. § 1983, and names Officer Alex
Downey as the defendant. (Docket No. 7 at 2). Officer Downey is sued in an individual capacity
only.
In the “Statement of Claim,” plaintiff asserts that on June 19, 2021, Officer Downey
slammed his face against the wall. (Docket No. 7 at 3). After being put on the ground, he alleges
that Officer Downey once again used force against him, chipping his tooth. Plaintiff states that
Officer Downey was not attempting to maintain control or discipline.

Prior to this incident, plaintiff asserts that Officer Downey used pepper spray against him
on February 24, 2021. (Docket No. 7 at 4). He states that this earlier event provided motivation
that led to Officer Downey’s “excessive force [on] June 19, 2021.”
Plaintiff states that he sustained a chipped tooth and minor swelling on his face and lip.
(Docket No. 7 at 6). He seeks $2.2 million in punitive damages and unspecified injunctive relief.
(Docket No. 7 at 7).
The Second Amended Complaint
Plaintiff’s second amended complaint is also brought pursuant to 42 U.S.C. § 1983, and
names Officer Caelan Upton as defendant. (Docket No. 8 at 2). Officer Upton is sued in an
individual capacity only.

In the “Statement of Claim,” plaintiff asserts that on June 27, 2021, Officer Upton “caused
[a] minor assault,” and used “excessive force.” (Docket No. 8 at 3). He states that he has a metal
device secured to his food port, and that Officer Upton grabbed “the metal device with effort to
cause harm.”
Subsequently, plaintiff states that Officer Upton was involved in another use of excessive
force against him. (Docket No. 8 at 4). Specifically, on October 20, 2021, Officer Upton allegedly
struck plaintiff several times “with a closed fist.”
The June 27, 2021 incident caused minor bruises and bleeding from forearm lacerations.
(Docket No. 8 at 5). The October 20, 2021 incident left bruises and lacerations on his upper lip.
(Docket No. 8 at 4). As a result, plaintiff seeks $2.2 million in punitive damages and unspecified
injunctive relief. (Docket No. 8 at 6).
Discussion
As noted above, the Court ordered plaintiff to submit an amended complaint on January 5,

2022. In response, he submitted two different complaints, each naming a single defendant, and
each containing claims that are unrelated to each other. The Court is uncertain whether plaintiff
intended his second amended complaint to replace his amended complaint, or whether plaintiff’s
second amended complaint is an attempt to initiate an entirely new case.
Because of this uncertainty, the Court will direct plaintiff to file a single third amended
complaint in this case, which should include the specific defendant he wants to sue, and the claims
he wishes to pursue. In other words, plaintiff’s third amended complaint should be directed at
either Officer Downey or Officer Upton, but not both.
Amendment Instructions
In preparing his third amended complaint, plaintiff must follow the instructions set forth

below. Plaintiff should read these instructions carefully, for the failure to follow them may result
in the dismissal of this action.
The third amended complaint should only include claims that arise out of the same
transaction or occurrence. In other words, plaintiff should only include claims that are related to
each other. See Fed. R. Civ. P. 20(a)(2). As discussed previously, plaintiff’s amended complaint
and second amended complaint contain unrelated claims against two different defendants. Going
forward, he may choose a single defendant and set forth as many claims as he has against that
defendant. See Fed. R. Civ. P. 18(a). However, he cannot sue both Officer Downey and Officer
Upton in the same case, because their actions are not part of the same transaction or occurrence.
In other words, plaintiff’s third amended complaint should be directed at either Officer Downey
or Officer Upton, not the two of them together.
If plaintiff desires to sue both Officer Downey and Officer Upton, he will have to bring a
new case against one of them. This new civil action should be on a Court-provided form, and

should be accompanied by a separate motion for leave to proceed in forma pauperis. Plaintiff
should indicate that he is filing a new case, and should not fill out the case number section until a
new case number is assigned.
Plaintiff should type or neatly print his third amended complaint on the Court’s civil rights
form, which will be provided to him. See E.D. Mo. L.R. 2.06(A) (“All actions brought by self-
represented plaintiffs or petitioners should be filed on Court-provided forms”). If the third
amended complaint is handwritten, the writing must be legible.
In the “Caption” section of the Court-provided form, plaintiff should clearly name each
and every party he is intending to sue. See Fed. R. Civ. P. 10(a) (“The title of the complaint must
name all the parties”). If there is not enough room in the caption, plaintiff may add additional

sheets of paper. However, all the defendants must be clearly listed. Plaintiff must specify whether
he intends to sue each defendant in an official capacity, an individual capacity, or both. The failure
to sue a defendant in his or her individual capacity may result in the dismissal of that defendant.
Plaintiff should put his case number in the appropriate location on the upper right-hand
section of the first page of the third amended complaint. He should then fill out the complaint form
in its entirety, and ensure that it is signed.
In the “Statement of Claim” section, plaintiff should provide a short and plain statement of
the factual allegations supporting his claim. See Fed. R. Civ. P. 8(a). Plaintiff should put each
claim into a numbered paragraph, and each paragraph should be “limited as far as practicable to a
single set of circumstances.” See Fed. R. Civ. P. 10(b).
The Court notes that both plaintiff’s amended and second amended complaints included
irrelevant material such as legal conclusions, legal arguments, and repeated assertions that he could

prove his claims. In the third amended complaint, plaintiff should confine his “Statement of Claim”
to facts about what happened.
In structuring his third amended complaint, plaintiff should begin by writing the
defendant’s name. In separate, numbered paragraphs under that name, plaintiff should write a short
and plain statement of the factual allegations supporting his claim against that specific defendant.
If plaintiff is suing more than one defendant, he should follow the same procedure for each
defendant.
If plaintiff is suing a defendant in an individual capacity, he is required to allege facts
demonstrating the personal responsibility of the defendant for harming him. See Madewell v.
Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (stating that § 1983 liability “requires a causal link

to, and direct responsibility for, the deprivation of rights”). Furthermore, the Court emphasizes
that the “Statement of Claim” requires more than “labels and conclusions or a formulaic recitation
of the elements of a cause of action.” See Neubauer v. FedEx Corp., 849 F.3d 400, 404 (8th Cir.
2017). For example, plaintiff cannot simply say that a defendant used “excessive force” or
“assaulted him.” Rather, plaintiff must provide facts explaining what the defendant did or did not
do to harm him.
If plaintiff is suing multiple defendants, it is important that he establish the responsibility
of each separate defendant for harming him. That is, for each defendant, plaintiff must allege facts
showing how that particular defendant’s acts or omissions violated his constitutional rights. It is
not enough for plaintiff to make general allegations against all the defendants as a group. Rather,
plaintiff needs to provide the role of each named defendant in this case, in order that each specific
defendant can receive notice of what he or she is accused of doing. See Topchian v. JPMorgan
Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (stating that the essential function of a

complaint “is to give the opposing party fair notice of the nature and basis or grounds for a claim”).
Plaintiff is warned that the filing of a third amended complaint completely replaces the
prior complaints. This means that claims that are not re-alleged in the third amended complaint
will be deemed abandoned. See In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922,
928 (8th Cir. 2005) (“It is well-established that an amended complaint supercedes an original
complaint and renders the original complaint without legal effect”).
After receiving the third amended complaint, the Court will review it pursuant to 28 U.S.C.
§ 1915. Plaintiff’s failure to make specific factual allegations against a defendant will result in the
dismissal of that defendant. If plaintiff fails to file a third amended complaint on a Court-provided
form within thirty days in accordance with the instructions set forth herein, the Court will dismiss

this action without prejudice and without further notice to plaintiff.
Accordingly,
IT IS HEREBY ORDERED that the Clerk of Court shall send to plaintiff a copy of the
Court’s prisoner civil rights complaint form.
IT IS FURTHER ORDERED that plaintiff shall file a third amended complaint on the
Court-provided form within thirty (30) days of the date of this order, in accordance with the
instructions set forth above.
IT IS FURTHER ORDERED that if plaintiff fails to file a third amended complaint on
the Court-provided form within thirty (30) days of the date of this order, in accordance with the
instructions set forth above, this action will be dismissed without prejudice and without further
notice.
IT IS FURTHER ORDERED that upon receipt of plaintiffs third amended complaint,
the Court will review it pursuant to 28 U.S.C. § 1915.
Dated this 9" day of February, 2022.

/ JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10236473. Public record. Not legal advice.