Freeman v. Adams et al

Filing 5

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $5.60 within thirty (30) days of 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. IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint, in accordance with the instructions set forth in this Memorandum and Order, no later than thirty (30) days from the date of this Memorandum and Order. IT IS FURTHER ORDERED that the Court shall mail to plaintiff five blank form complaints for the filing of a prisoner civil rights complaint, as well as five blank form motions for leave to proceed in forma pauperis. Plaintiff may request additional forms from the Clerk, as needed.( Initial Partial Filing Fee due by 7/30/2012.) Signed by Honorable Stephen N. Limbaugh, Jr on 6/29/2012. (five blank complaint and ifp forms forwarded to Mr. Freeman)(JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
PAUL FREEMAN,
Plaintiff,
v.
FRANKIE ADAMS, et al.,
Defendants.

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No. 1:12-CV-86-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
150481), an inmate at the Eastern Reception Diagnostic and 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 $5.60.
See 28 U.S.C. § 1915(b)(1). Additionally, 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
$27.98, and an average monthly balance of $3.11. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $5.60, 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 must 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 from a defendant who is immune
from such relief. An action is frivolous if it “lacks an arguable basis in either law or
fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 112 S.
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Ct. 1728, 1733 (1992). An action is malicious if it is undertaken for the purpose of
harassing the named defendants and not for the purpose of vindicating a cognizable
right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987), aff’d 826 F.2d
1059 (4th Cir. 1987). A complaint fails to state a claim if it does not plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 127 S. Ct. 1955, 1974 (2007).
The Complaint
Plaintiff, an inmate at Eastern Reception Diagnostic and Correctional Center,
seeks monetary and injunctive relief in this action brought pursuant to 42 U.S.C. §
1983 for constitutional violations he suffered while on parole during the period of
June 27, 2011, through November 18, 2011. Plaintiff names five Sikeston police
officers as defendants, to wit: Frankie Adams, Bobby Sullivan, Zachariah Albright,
John A. Blakley, and Drew Juden.
Plaintiff’s allegations arise out of a host of different occurrences that took place
“throughout the month of July 2011,” and continued through November 18, 2011. For
example, plaintiff claims that defendant Adams slandered him on multiple occasions
beginning in July 2011, and thereby put plaintiff’s life in danger; on November 3,
2011, defendant Adams falsely arrested him and “release[d] and commanded his K9

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Eros to attack” him, resulting in physical injuries to plaintiff’s left wrist and arm;1
also on November 3, defendant Albright “grabbed [plaintiff], turned [him] over
dropping his knee into plaintiff’s spine, handcuffed, and violently snatched [him] up”;
on November 16 through 18, 2011, defendant Blakley engaged in “slander and
lawless police misconduct”; on November 17, 2011, defendant Albright engaged in
slander, and defendant Sullivan unlawfully arrested him for receiving stolen property
and possessing 1.2 grams of crack cocaine, “thereby sabotag[ing] plaintiff’s parole
status” and resulting in his false imprisonment; and defendant Juden failed to
“monitor, control, reprimand, and hold defendant Adams accountable for his lawless
police misconduct [August 22, 2011 - Nov. 3, 2011] and torts precisely outlined
herein.” This is but a sample of the numerous allegations plaintiff asserts against the
five named defendants. The separate claims bear little or no relationship to each
other.
Discussion
Rule 18(a) of the Federal Rules of Civil Procedure states:
A party asserting a claim to relief as an original claim,
counterclaim, cross-claim, or third-party claim, may join,
either as independent or as alternate claims, as many

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Plaintiff states that he spent nine days in jail before he was able to post bond,
and that, on December 6, 2011, the prosecutor voluntarily dismissed the charges.
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claims, legal, equitable, or maritime, as the party has
against an opposing party.
As such, multiple claims against a single party are valid. George v. Smith, 507 F.3d
605, 607 (7th Cir. 2007).
For the most part, however, the instant action presents a case involving
multiple claims against, not one, but five defendants. Indeed, it appears that plaintiff
is attempting to cram almost every claim he might have ever had against the Sikeston
Police Department into one lawsuit. Such pleading practices are not allowed,
especially in prisoner actions where there could be an incentive to avoid paying
separate filing fees. See id. (district court should question joinder of defendants and
claims in prisoner cases). Federal Rule of Civil Procedure 20(a)(2) is controlling and
provides:
Persons . . . may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising out
of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or
fact common to all defendants will arise in the action.
Thus, a plaintiff cannot normally seek to join in one lawsuit a multitude of claims
against a host of different defendants, relating to events arising out of a series of
different occurrences or transactions. In other words, “Claim A against Defendant
1 should not be joined with unrelated Claim B against Defendant 2.” George v.
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Smith, 507 F.3d 605, 607 (7th Cir. 2007). "Unrelated claims against different
defendants belong in different suits, . . . [in part] to ensure that prisoners pay the
required filing fees - for the Prison Litigation Reform Act limits to 3 the number of
frivolous suits or appeals that any prisoner may file without prepayment of the
required fees." Id.
Because plaintiff is proceeding pro se and in forma pauperis, the Court will
give him an opportunity to file an amended complaint in this action. In so doing,
plaintiff should select the transaction or occurrence he wishes to pursue, in
accordance with Rules 18 and 20 of the Federal Rules of Civil Procedure, and file an
amended complaint, limiting his facts and allegations to the defendant(s) involved in
said occurrence. Plaintiff should only include in his amended complaint those claims
that arise out of the same transaction or occurrence, or simply put, claims that have
some relation to each other. See Fed.R.Civ.P. 20(a)(2). Alternatively, plaintiff may
choose to select one defendant and set forth as many claims as he has against that
single individual. See Fed.R.Civ.P. 18(a).
Plaintiff is reminded that he is required to submit his amended complaint on
a court-provided form, and it must comply with Rules 8 and 10 of the Federal Rules
of Civil Procedure. 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
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Claim," plaintiff shall start by typing the first defendant’s name, and under that name,
he shall set forth in separate numbered paragraphs the allegations supporting his
claim(s) as to that particular defendant, as well as the right(s) that he claims that
particular defendant violated. If plaintiff is suing more than one defendant, he shall
proceed in this manner with each of the named defendants, separately setting forth
each individual name and under that name, in numbered paragraphs, the allegations
specific to that particular defendant and the right(s) that he claims that particular
defendant violated.
The amended complaint must contain short and plain statements showing that
plaintiff is entitled to relief, the allegations must be simple, concise, and direct, and
the numbered paragraphs must each be limited to a single set of circumstances. If
plaintiff needs more space, he may attach additional sheets of paper to the amended
complaint and identify them as part of the "Caption" or "Statement of Claim."
Because the Court is allowing plaintiff to amend his complaint, it will take no action
as to the named defendants at this time. Plaintiff is advised that the amended
complaint will replace the original complaint and will be the only pleading this Court
reviews. See, e.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation,
396 F.3d 922, 928 (8th Cir. 2005).

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Last, if plaintiff wishes to pursue additional claims against additional
defendants, and the claims to not arise from the same transaction or occurrence he has
chosen to advance in his amended complaint, he must file each such claim(s) on a
separate complaint form and either pay the $350 filing fee or file a motion for leave
to proceed in forma pauperis and certified inmate account statement. In anticipation
of such an occurrence, the Court will instruct the Clerk to provide plaintiff with the
appropriate blank forms for filing a complaint and motion to proceed in forma
pauperis. Because each complaint would be filed as a new action, plaintiff should not
put a cause number on the new complaint(s). The Clerk of Court will assign a cause
number to each new action.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of
$5.60 within thirty (30) days of 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.

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IT IS FURTHER ORDERED that plaintiff shall submit an amended
complaint, in accordance with the instructions set forth in this Memorandum and
Order, no later than thirty (30) days from the date of this Memorandum and Order.
IT IS FURTHER ORDERED that the Court shall mail to plaintiff five blank
form complaints for the filing of a prisoner civil rights complaint, as well as five
blank form motions for leave to proceed in forma pauperis. Plaintiff may request
additional forms from the Clerk, as needed.
Dated this 29th day of June, 2012.

UNITED STATES DISTRICT JUDGE

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