Warren v. Seabaugh et al

Filing 7

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that plaintiff's motion to substitute "Timothy Seabaugh" for defendant "K enneth Seabaugh" [Doc. #3] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $1.70 within thirty (30) days from the date of this order. Plaintiff is instructed to make his remittance payable to &quo t;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 a mended complaint within thirty (30) days from the date of this Order. In the amended complaint, plaintiff shall complete in its entirety the court-provided form for filing a complaint pursuant to 42 U.S.C. § 1983. Specifically, in the "Capt ion" of the form complaint, plaintiff shall set forth the name of each defendant he wishes to sue; and in the "Statement of Claim," he shall set forth as to each named defendant the specific factual allegations supporting his claim aga inst the particular defendant, as well as the specific rights that he claims the defendant violated. IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff, in addition to a copy of this Order and Memorandum, the court-provided form for filing a complaint pursuant to 42 U.S.C. §1983. IT IS FURTHER ORDERED that plaintiff's failure to amend his complaint in accordance with this Court's instructions will result in the dismissal of this action, without prejudice. IT IS FURTHER O RDERED that upon the filing of the amended complaint, the Clerk shall resubmit this action to the Court for review pursuant to 28 U.S.C. § 1915(e). Plaintiff is advised that the Court will consider only the amended complaint when reviewing this action under § 1915(e).( Amended/Supplemental Pleadings due by 6/2/2011., Initial Partial Filing Fee due by 6/2/2011.)(prisoner civil rights complaint form forwarded to Mr. Warren). Signed by Honorable Stephen N. Limbaugh, Jr on 5/3/2011. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
LEE VERNON WARREN,
Plaintiff,
v.
KENNETH E. SEABAUGH, et al.,
Defendants.

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No. 1:11-CV-54-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the application of
Lee Vernon Warren (registration no. 15692) for leave to commence
this action without payment of the required filing fee.

For the

reasons stated below, the Court will assess an initial partial
filing fee of $1.70.

See 28 U.S.C. § 1915(b)(1).
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

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.

See 28 U.S.C.

§ 1915(b)(1). 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).

See

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 preceding
the receipt of his complaint.
review

of

plaintiff’s

See 28 U.S.C. § 1915(a)(1),(2).

account

statement

indicates

an

A

average

monthly deposit of $8.50 and an average monthly account balance of
$.50.
fee.

Plaintiff has insufficient funds to pay the entire filing
Accordingly, the Court will assess an initial partial filing

fee of $1.70, which is 20 percent of plaintiff’s average monthly
balance.
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 at any time 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.

An action is frivolous if "it

lacks an arguable basis either in law or in fact."
Williams, 490 U.S. 319, 325 (1989).

Neitzke v.

An action fails to state a

claim upon which relief can be granted if it does not plead “enough

2

facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In reviewing a pro se complaint under § 1915(e)(2)(B),
the

Court

must

construction.

give

the

complaint

the

benefit

of

a

liberal

Haines v. Kerner, 404 U.S. 519, 520 (1972).

The

Court must also weigh all factual allegations in favor of the
plaintiff, unless the facts alleged are clearly baseless.

Denton

v. Hernandez, 504 U.S. 25, 32 (1992).
The complaint
Plaintiff, an inmate at the Southeast Correctional Center
(“SECC”), has submitted a complaint on a form for filing a petition
for writ of habeas corpus under 28 U.S.C. § 2254.

Plaintiff,

however, is not challenging his conviction or sentence, but rather,
is complaining that he is being subjected to intimidations and
threats, as well as a denial of his right of access to the courts.
As such, the Court will liberally construe this action as having
been brought under 42 U.S.C. § 1983.
It is unclear to the Court what plaintiff’s claims are as
to

each

defendant.

Taking

into

consideration

the

fact

that

plaintiff is proceeding pro se and in forma pauperis, the Court
will grant him time to file an amended complaint, as set forth
below.

See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.

1990)(liability under § 1983 requires causal link to, and direct
responsibility for, alleged deprivation of rights); Martin v.

3

Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable
under

§

1983

where

plaintiff

fails

to

allege

defendant

was

personally involved in or directly responsible for incidents that
injured

plaintiff).

complaint

will

Plaintiff

supersede

his

is

advised

original

that

the

complaint

amended
and

any

supplement(s) thereto and will be the only pleading the Court
considers.
Last, plaintiff has filed a motion to substitute a party
defendant

[Doc.

#3].

Plaintiff

seeks

to

Seabaugh” for defendant “Kenneth Seabaugh.”

substitute

“Timothy

The Court will grant

plaintiff’s motion.
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff's motion for leave to
proceed in forma pauperis [Doc. #2] is GRANTED.
IT

IS

FURTHER

ORDERED

that

plaintiff’s

motion

to

substitute “Timothy Seabaugh” for defendant “Kenneth Seabaugh”
[Doc. #3] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial
partial filing fee of $1.70 within thirty (30) days from the date
of this order.

Plaintiff is instructed to 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.
4

IT IS FURTHER ORDERED that plaintiff shall file an
amended complaint within thirty (30) days from the date of this
Order.1

In the amended complaint, plaintiff shall complete in its

entirety the court-provided form for filing a complaint pursuant to
42 U.S.C. § 1983.

Specifically, in the "Caption" of the form

complaint, plaintiff shall set forth the name of each defendant he
wishes to sue; and in the "Statement of Claim," he shall set forth
as

to

each

named

defendant

the

specific

factual

allegations

supporting his claim against the particular defendant, as well as
the specific rights that he claims the defendant violated.
IT IS FURTHER ORDERED that the Clerk shall mail to
plaintiff, in addition to a copy of this Order and Memorandum, the
court-provided form for filing a complaint pursuant to 42 U.S.C. §
1983.
IT IS FURTHER ORDERED that plaintiff's failure to amend
his complaint in accordance with this Court's instructions will
result in the dismissal of this action, without prejudice.
IT IS FURTHER ORDERED that upon the filing of the amended
complaint, the Clerk shall resubmit this action to the Court for
review pursuant to 28 U.S.C. § 1915(e).

1

Plaintiff is advised that

For his amended complaint, plaintiff shall use the courtprovided form for filing a complaint pursuant to 42 U.S.C. §
1983. The Court will instruct the Clerk to send plaintiff the
court form for filing a § 1983 action.
5

the Court will consider only the amended complaint when reviewing
this action under § 1915(e).
Dated this 3rd day of May, 2011.

____________________________
UNITED STATES DISTRICT JUDGE

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