Roberts v. Lombardi et al

Filing 7

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Kyle A. Roberts motion is GRANTED. IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed informa pauperis [Doc. #2] 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 Dist rict 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 if plaintiff fails to pay the initial partial filin g fee within thirty (30) days, without first showing good cause, the Court will dismiss this action without prejudice and without further notice to plaintiff. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on or before September 17, 2012, that complies with this Memorandum and Order. IT IS FURTHER ORDERED that, in addition to a copy of this Order, the Clerk shall mail plaintiff a copy of the Court's form for prisoners to file a "Complaint Under the Civil Rights Ac t, 42 U.S.C. § 1983." IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court will dismiss this action without prejudice and without further notice to plaintiff. If the case is dismissed for non-compliance with this Order, the dismissal will not constitute a "strike" under 28 U.S.C. § 1915(g). (Initial Partial Filing Fee due by 9/17/2012.) Signed by District Judge Stephen N. Limbaugh, Jr on 8/17/12. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

KYLE A. ROBERTS,
Plaintiff,
v.
GEORGE A. LOMBARDI, et al.,
Defendants.

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No. 1:12-CV-134-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Kyle A. Roberts
(registration no. 1173831), an inmate at the Crossroads 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 $1.70. 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
$70.83, and an average monthly balance of $15.48. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $14.17, 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 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
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fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). 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). An action fails to state a claim
upon which relief can be granted if it does not plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,570
(2007).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify
the allegations in the complaint that are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009).

These include "legal

conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are]
supported by mere conclusory statements." Id. at 1949. Second, the Court must
determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a "context-specific task that requires the reviewing court to draw on its
judicial experience and common sense." Id. at 1950. The plaintiff is required to
plead facts that show more than the "mere possibility of misconduct." Id. The Court
must review the factual allegations in the complaint "to determine if they plausibly
suggest an entitlement to relief."

Id. at 1951.
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When faced with alternative

explanations for the alleged misconduct, the Court may exercise its judgment in
determining whether plaintiff's conclusion is the most plausible or whether it is more
likely that no misconduct occurred. Id. at 1950, 51-52.
Moreover, in reviewing a pro se complaint under § 1915(e)(2)(B), the Court
must give the complaint the benefit of a liberal construction. 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 and Supplement
Plaintiff, an inmate at the Crossroads Correctional Center, seeks monetary
relief in this action brought pursuant to 42 U.S.C. § 1983. Plaintiff’s allegations arise
out of the treatment he received after suffering a broken jaw at the Southeast
Correctional Center. It is unclear to the Court who exactly plaintiff intends to name
as defendants in this action and what his claims are as to each defendant. Although
the caption of the complaint lists George A. Lombardi, Dwayne V. Kempker,
“Corizon (Director),” and Rick Jones as defendants, plaintiff refers to many
additional doctors and prison staff employees in his fifty-four-page complaint and
thirteen-page supplement.

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Discussion
The Court has reviewed the complaint under 28 U.S.C. § 1915 and believes
that, although plaintiff may be able to assert a claim based upon the denial of his
Eighth Amendment rights, he has failed to set forth, in a simple, concise, and direct
manner as to each named defendant, the specific factual allegations supporting each
of his claims.

"Liability under § 1983 requires a causal link to, and direct

responsibility for, the alleged deprivation of rights." Madewell v. Roberts, 909 F.2d
1203, 1208 (8th Cir. 1990); see also, Martin v. 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);
Glick v. Sargent, 696 F.2d 413, 414-15 (8th Cir. 1983) (respondeat superior theory
inapplicable in § 1983 suits). In addition, the Federal Rules of Civil Procedure
require litigants to formulate their pleadings in an organized and comprehensible
manner. Even pro se litigants are obligated to abide by the Federal Rules of Civil
Procedure. See U.S. v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994); Boswell v.
Honorable Governor of Texas, 138 F.Supp.2d 782, 785 (N.D. Texas 2000);
Fed.R.Civ.P. 8(a)(2)(complaint should contain “short and plain statement” of claims);
Fed.R.Civ.P. 8(e)(2)(each claim shall be “simple, concise, and direct”); Fed.R.Civ.P.
10(b)(parties are to separate their claims within their pleadings “the contents of which
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shall be limited as far as practicable to a single set of circumstances”). Although the
Court is to give the complaint the benefit of a liberal construction, the Court will not
create facts or claims that have not been alleged. Plaintiff is required, to the best of
his ability, to set out in a simple, concise, and direct manner, not only his Eighth
Amendment claims, but also the facts supporting these claims as to each named
defendant.
Because plaintiff is proceeding pro se, the Court will allow him time to file an
amended complaint in accordance with this Memorandum and 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 "Caption" of the form
complaint, plaintiff shall set forth the name and the address of each defendant he
wishes to sue; and in the "Statement of Claim," plaintiff shall start by typing or
legibly writing 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. Plaintiff 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
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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." Plaintiff shall sign the amended complaint.
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 his amended
complaint will replace his original complaint and will be the only complaint this
Court reviews. The Court will not consider any claims or allegations that are not
included in the amended complaint, even if they were asserted in the earlier complaint
and supplement.
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 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.
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IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial
filing fee within thirty (30) days, without first showing good cause, the Court will
dismiss this action without prejudice and without further notice to plaintiff.
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint
on or before September 17, 2012, that complies with this Memorandum and Order.
IT IS FURTHER ORDERED that, in addition to a copy of this Order, the
Clerk shall mail plaintiff a copy of the Court’s form for prisoners to file a "Complaint
Under the Civil Rights Act, 42 U.S.C. § 1983."
IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order,
the Court will dismiss this action without prejudice and without further notice to
plaintiff. If the case is dismissed for non-compliance with this Order, the dismissal
will not constitute a “strike” under 28 U.S.C. § 1915(g).
Dated this 17th day of August, 2012.

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UNITED STATES DISTRICT JUDGE

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