Dillard v. Meinzer et al

Filing 9

ORDER modifying 7 Order as set forth in this Order and striking from the record the 4 Amended Complaint and 2 Complaint filed by John Wayne Dillard. The Clerk is directed to send a copy of this Order and the July 18, 2012 Order to the Ward en, Varner SuperMax Unit, P.O. Box 400, Grady, AR 71644-0400, and to the ADC Offices. Plaintiff Dillard must file a substituted complaint containing the information in Section III of this Order within 30 days. Signed by Magistrate Judge H. David Young on 7/25/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JOHN WAYNE DILLARD
ADC #147484
V.

PLAINTIFF

NO: 5:12CV00270 SWW/HDY

CURTIS MEINZER et al.

DEFENDANTS
ORDER
I. Procedural history

Plaintiff John Wayne Dillard is a prisoner in the Varner Super Max Unit (“VSM”) of the
Arkansas Department of Correction (“ADC”). In late June of 2012, he and eight other prisoners
jointly filed a pro se1 § 1983 complaint and an amended complaint challenging the constitutionality
of the VSM incentive level program and alleging that Defendants violated their constitutional rights
in other ways. See Reid v. Meizner; 5:12CV00230 KGB/BD (docket entries #1 and #10).
On July 18, 2012, the Court granted several of the Plaintiffs, including Dillard, permission
to proceed in forma pauperis, and directed the ADC to collect monthly payments from each of their
inmate trust accounts. See Reid (docket entry #30). On the same day, the Court determined that the
Plaintiffs’ claims were legally and factually different. See Reid (docket entry #33). Thus, the Court
severed each of Plaintiffs’ claims into separate lawsuits, including this current lawsuit in which

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Plaintiff is notified of his responsibility to comply with Local Rule 5.5(c)(2), which states:
"It is the duty of any party not represented by counsel to promptly notify the Clerk and the other
parties to the proceedings of any change in his or her address, to monitor the progress of the case,
and to prosecute or defend the action diligently. A party appearing for himself/herself shall sign
his/her pleadings and state his/her address, zip code, and telephone number. If any communication
from the Court to a pro se plaintiff is not responded to within thirty (30) days, the case may be
dismissed without prejudice. Any party proceeding pro se shall be expected to be familiar with and
follow the Federal Rules of Civil Procedure.”
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Dillard is the only Plaintiff. When the Clerk did so, copies of the jointly filed complaint, amended
complaint, and July 18, 2012, order granting in forma pauperis status were filed in each separately
severed lawsuit, including this one.
II. In forma pauperis application
The July 18, 2012, order granting Plaintiffs permission to proceed in forma pauperis stated
that funds should be taken from each separate Plaintiff’s inmate trust account and sent to the Clerk
for payment of the $350 filing fee in Reid v. Meizner, 5:12CV00230 KGB/BD. Now that the cases
have been severed, each Plaintiff is responsible for paying the $350 filing fee for their individual
lawsuits.
Thus, the Court will clarify, to ADC officials, that the monthly withdrawals from Plaintiff
Dillard’s inmate trust account should be sent to the Clerk for payment of this case, Dillard v.
Meinzner; 5:12CV00270 SWW/HDY, and not Reid v. Meizner, 5:12CV00230 KGB/BD.
III. Screening
Before docketing the complaint, or as soon thereafter as practicable, the Court must review
the complaint to identify cognizable claims or dismiss the complaint if it: (1) is frivolous or
malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief
against a defendant who is immune from such relief. See 28 U.S.C. § 1915A. Fed.R.Civ.P. 8(a)(2)
requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.”
In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007) (overruling Conley v. Gibson,
355 U.S. 41 (1967), and setting new standard for failure to state a claim upon which relief may be
granted), the Court stated, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment]to
relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do....Factual allegations must be enough to raise a right to relief above the
speculative level,” citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235236 (3d ed. 2004). A complaint must contain enough facts to state a claim to relief that is plausible
on its face, not merely conceivable. Twombly at 570. However, a pro se plaintiff's allegations must
be construed liberally. Burke v. North Dakota Dept. of Corr. & Rehab., 294 F.3d 1043, 1043-1044
(8th Cir.2002) (citations omitted).
The Court did not screen the jointly filed complaint and amended complaint prior to severing
the Reid case into separate lawsuits. It is difficult to determine, from the jointly filed complaint and
amended complaint, how Plaintiff’s individual constitutional rights were violated by each of the
Defendants. Accordingly, for the sake of clarity, the Court will strike the jointly filed complaint and
amended complaint from the record in this case, and give Plaintiff Dillard thirty days to file a
“substituted complaint” which includes a short statement as to: (1) how and when his individual
constitutional rights were violated; and (2) how Defendants Meinzer, Banks, and Hobbs, personally
participated in each of the alleged constitutional violations.2
IV. Conclusion
IT IS THEREFORE ORDERED THAT:
1.

The July 18, 2012, order (docket entry #7) is MODIFIED to clarify that the monthly

payments from Plaintiff John Wayne Dillard’s inmate trust account should be sent to the Clerk for
the payment of Dillard v. Meinzer; 5:12CV00270 SWW/HDY and not Reid v. Meinzer;
5:12CV00230 KGB/BD.

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Plaintiff does not have standing to raise constitutional claims suffered by other prisoners.
Thus, his substituted complaint must include only the constitutional violations that he personally
suffered.
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2.

The Clerk is directed to send a copy of this order and the July 18, 2012, order (docket

entry #7) to: (a) the Warden of the Varner Super Max Unit, P.O. Box 400, Grady, AR 71644-0400;
(b) the ADC Trust Fund Centralization Banking Office, P.O. Box 8908, Pine Bluff, Arkansas 71611;
and (c) the ADC Compliance Office, P.O. Box 20550, Pine Bluff, Arkansas 71612-0550.
3.

The complaint and amended complaint (docket entries #2 and #4) are STRICKEN

FROM THE RECORD.
4.

Plaintiff Dillard must, no later than 30 days after the entry of this order, file a

substituted complaint containing the information specified in Section III of this order. Plaintiff
Dillard’s failure to do so will result in the recommended dismissal of his complaint.
DATED this

25

day of July, 2012.

UNITED STATES MAGISTRATE JUDGE

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