Warmack et al v. Steele et al

Filing 16

MEMORANDUM AND ORDER..granting re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Michael D. Warmack ( Initial Partial Filing Fee of $7.98 due by 7/2/2009., IT IS FURTHER ORDERED that plaintiff shall file an amended complaint no later than twenty (20) days from the date of this Order. IT IS FURTHER ORDERED that if plaintiff fails to timely file an amended complaint, the Court will dismiss this action without prejudice. IT IS FURTHER ORDERED that the Clerk shall not issue process or causeprocess to issue upon the complaint at this time.( Response to Court due by 6/23/2009.) Signed by Honorable Catherine D. Perry on 6/3/09. (MRS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION MICHAEL WARMACK, et al., Plaintiffs, v. TROY STEELE, et al., Defendants. ) ) ) ) ) ) ) ) )

No. 1:09CV23 CDP

MEMORANDUM AND ORDER This matter is before the Court upon the motion of Michael Warmack (registration no. 180442), an inmate at Southeast Correctional Center, for leave to commence this action without payment of the required filing fee [Doc. #2]. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $7.98. See 28 U.S.C. § 1915(b)(1). Furthermore, the Court will order plaintiff to file an amended complaint.. 28 U.S.C. § 1915(b)(1) Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial partial filing fee of 20 percent of the

greater of (1) the average monthly deposits in the prisoner's account, or (2) the average monthly balance in the prisoner's account for the prior six-month period. After payment of the initial partial filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these monthly payments to the Clerk of Court each time the amount in the prisoner's account exceeds $10, until the filing fee is fully paid. Id. Plaintiff has submitted an affidavit and a certified copy of his prison account statement for the six-month period immediately preceding the submission of his complaint. A review of plaintiff's account indicates an average monthly deposit of $39.92, and an average monthly balance of $13.03. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $7.98, which is 20 percent of plaintiff's average monthly deposit. 28 U.S.C. § 1915(e) Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief.

-2-

Discussion Plaintiff originally filed this action with seven other prisoners, including Robert Bell. Robert Bell has three strikes pursuant to 28 U.S.C. § 1915(g), and it appeared that Bell drafted the complaint with his own case in mind and later added the other plaintiffs in an attempt to avoid dismissal under § 1915(g). All of the plaintiffs except Warmack have been dismissed from this action, and it is unclear as to whether any of the allegations in the complaint actually pertain to Warmack. Because plaintiff is proceeding pro se, the Court will allow plaintiff to file an amended complaint. Plaintiff shall have 20 days from the date of this Order to file an amended complaint. Plaintiff is warned that the filing of an amended complaint replaces the original complaint, and claims that are not realleged are deemed abandoned. E.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). If plaintiff fails to file an amended complaint within 20 days, the Court will dismiss this action without prejudice. Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $7.98 within thirty (30) days of the date of this Order. Plaintiff is instructed to
-3-

make his remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint no later than twenty (20) days from the date of this Order. IT IS FURTHER ORDERED that if plaintiff fails to timely file an amended complaint, the Court will dismiss this action without prejudice. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint at this time. Dated this 3rd day of June, 2009.

CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE

-4-