Rudy Stanko v. Jeff Brewer ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-3150
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Rudy Butch Stanko, individually and on behalf of similarly situated prisoners,
lllllllllllllllllllllPlaintiff - Appellant,
v.
Jeff Brewer, individually,
lllllllllllllllllllllDefendant - Appellee.
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: June 3, 2021
Filed: July 12, 2021
[Unpublished]
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Before COLLOTON, SHEPHERD, and GRASZ, Circuit Judges.
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PER CURIAM.
Rudy Stanko appeals following the district court’s dismissal of his 42 U.S.C.
§ 1983 action. We affirm in part and remand for the district court to address one
claim in the first instance.
Initially, we conclude that Stanko properly appealed the district court’s order
denying his motion to remand to state court, as the notice of appeal was filed after
final judgment was entered. See Fed. R. App. P. 25(a)(2)(A); Menz v. New Holland
N. Am., Inc., 440 F.3d 1002, 1004 (8th Cir. 2006). We also conclude that he
adequately appealed the court’s order striking his second amended complaint and
dismissing the action, as Stanko’s intent to appeal the judgment is apparent from his
appellate filings, the order and judgment were included in the originating court
documents, the appellee does not claim any prejudice from lack of notice, and the
parties have fully briefed the issues. See Fed. R. App. P. 3(c)(4); Smith v. Barry, 502
U.S. 244, 248-49 (1992); Berdella v. Delo, 972 F.2d 204, 207-08 (8th Cir. 1992);
Turner v. Armontrout, 922 F.2d 492, 494 (8th Cir. 1991).
Turning to the merits, we conclude that the district court did not err in denying
the motion to remand, as Stanko’s amended complaint specifically asserted claims
under section 1983 for violating his federal constitutional rights. See 28 U.S.C.
§§ 1331; 1441(a); Biscanin v. Merrill Lynch & Co., Inc., 407 F.3d 905, 906-07 (8th
Cir. 2005); Krispin v. May Dep’t Stores Co., 218 F.3d 919, 922 (8th Cir. 2000). We
also conclude that the court did not err in striking the second amended complaint, as
Stanko did not seek leave or consent to amend. See Fed. R. Civ. P. 15(a). The
amendment would have been futile in any event because an inmate cannot bring
claims on behalf of other prisoners. See Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir.
2010); Hammer v. City of Osage Beach, 318 F.3d 832, 844 (8th Cir. 2003); Martin
v. Sargent, 780 F.3d 1334, 1337 (8th Cir. 1985).
As to the dismissal, we agree with the district court that the claims for
declaratory and injunctive relief were rendered moot when Stanko was transferred.
See Smith v. Hundley, 190 F.3d 852, 855 (8th Cir. 1999). We also agree that the
original access-to-courts claim for damages was insufficient, as Stanko did not allege
that he suffered an actual injury. See Hartsfield v. Nichols, 511 F.3d 826, 831-32 (8th
Cir. 2008).
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Liberally construing the complaint, however, Stanko raised one more claim as
to which the district court made no ruling. He alleged that defendant Brewer
retaliated against him for filing this lawsuit, a claim that would arise under the First
Amendment. R. Doc. 1-5, at 1-3; see Lewis v. Jacks, 486 F.3d 1025, 1028-29 (8th
Cir. 2007). The district court addressed only Stanko’s claims under the Sixth
Amendment and the Eighth Amendment, and did not consider a separate retaliation
claim based on the First Amendment.
Accordingly, we vacate the dismissal of Stanko’s retaliation claim and remand
for the district court to consider that claim in the first instance. We express no view
at this juncture on whether the complaint states a claim under the First Amendment
or whether the claim should be dismissed for failure to exhaust administrative
remedies. We affirm the judgment in all other respects.
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