Fitzpatrick v. Stotier

Filing 9

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 shall pay an initial partial filing fee of $9.77 within thirty (30) days fro m 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 remitt ance is for an original proceeding. 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. IT IS FURTHER ORD ERED that plaintiff's motion to amend his complaint by interlineation [Doc. #8] is DENIED without prejudice.IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to be issued upon the complaint and supplement [Docs. #1 and #7 ] as to defendant Brad Stotier in his individual capacity only. IT IS FURTHER ORDERED that, in his individual capacity, defendant Brad Stotier shall file an answer or other responsive pleading to plaintiff's claims within the time provided by th e applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that this action is DISMISSED, without prejudice, as to defendant Brad Stotier in his official capacity. See 28 U.S.C. § 1915(e)(2)(B).IT IS FUR THER ORDERED that, pursuant to the Court's differentiated case management system, this case is assigned to Track 5B (standard prisoner actions). A separate Order of Partial Dismissal will be filed separately. (Initial Partial Filing Fee due by 7/22/2013.) Signed by District Judge Stephen N. Limbaugh, Jr on 6/21/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

MICHAEL RAY FITZPATRICK,
Plaintiff,
v.
BRAD STOTIER,
Defendant.

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No. 1:13-CV-36-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the application of Michael Ray
Fitzpatrick (registration no. 528662) for leave to commence this action without
payment of the required filing fee. For the reasons stated below, the Court will
grant the motion and assess an initial partial filing fee of $9.77. See 28 U.S.C. §
1915(b)(1). Furthermore, based upon a review of the pleadings, the Court finds
that process should issue as to defendant Brad Stotier in his individual capacity.
The Court will deny plaintiff’s motion to amend his claims by interlineation [Doc.
#8], because the Court does not accept amendments by interlineation.1

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In addition, the Court notes that because defendant Brad Stotier is not a
federal actor, plaintiff may not assert a Bivens claim against him. Plaintiff has
properly brought his constitutional claims against Stotier, who is a state actor,
under 42 U.S.C. § 1983. Moreover, plaintiff has already indicated that he is suing

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. See 28 U.S.C. § 1915(b)(2).
Stotier in his individual and official capacities, and therefore, there is no reason to
amend the complaint to restate this. If plaintiff wishes to amend his complaint in
the future, he must file a motion requesting leave of Court to do so and attach his
proposed amended complaint to the motion. Plaintiff is advised that if he is
allowed to file an amended complaint, the Court will not consider any claims or
allegations that are not included in the amended complaint, even if they were
asserted in an earlier pleading; the amended complaint will replace his original
pleadings and will be the only complaint this Court reviews. Plaintiff is reminded
that 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 shall be limited as far as practicable to a single set of
circumstances”).
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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. See 28 U.S.C. § 1915(a)(1),(2). A review of plaintiff's account
statement indicates an average monthly deposit of $48.83, and an average monthly
account balance of $16.18. Plaintiff has insufficient funds to pay the entire filing
fee. Accordingly, the Court will assess an initial partial filing fee of $9.77, 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 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
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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.

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.

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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 Eastern Reception Diagnostic and Correctional
Center, seeks monetary relief in this 42 U.S.C. § 1983 action against defendant Brad
Stotier (Cape Girardeau police officer). Liberally construing the pleadings, plaintiff
is alleging that, during his pretrial confinement at the Cape Girardeau County Jail,
defendant Stotier violated his Fourteenth Amendment rights when he shot plaintiff
in the back with a taser for no justifiable reason, thereby causing plaintiff physical
pain and injury. Plaintiff claims that Stotier’s brutality and unnecessary excessive use
of force violated his Fourteenth Amendment rights. Plaintiff is suing defendant
Stotier in both his individual and official capacities.
Discussion
A review of the complaint [Doc. #1] and supplement [Doc. #7] indicates that
plaintiff has stated actionable claims for relief against defendant Brad Stotier in his
individual capacity relative to the violation of plaintiff's Fourteenth Amendment
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rights. Said claims survive review under 28 U.S.C. § 1915(e)(2)(B), and therefore,
the Court will order defendant Brad Stotier to reply to the complaint and supplement
in his individual capacity. See 42 U.S.C. § 1997e(g)(2).
Naming a government official in his or her official capacity is the equivalent
of naming the government entity that employs the official. See Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 71 (1989). To state a claim against a municipality
or a government official in his or her official capacity, a plaintiff must allege that a
policy or custom of the government entity is responsible for the alleged constitutional
violation. Monell v. Dep't of Social Services, 436 U.S. 658, 690-91 (1978). The
instant complaint does not contain any allegations that a policy or custom of a
government entity was responsible for the alleged violations of plaintiff's
constitutional rights. As a result, plaintiff's claims are legally frivolous and fail to
state a claim upon which relief can be granted as to defendant Brad Stotier in his
official capacity, and the Court will order that all said claims be dismissed without
prejudice.
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.

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IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $9.77 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.
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.
IT IS FURTHER ORDERED that plaintiff's motion to amend his complaint
by interlineation [Doc. #8] is DENIED without prejudice.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to be issued upon the complaint and supplement [Docs. #1 and #7] as to
defendant Brad Stotier in his individual capacity only.
IT IS FURTHER ORDERED that, in his individual capacity, defendant Brad
Stotier shall file an answer or other responsive pleading to plaintiff's claims within
the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of
Civil Procedure.

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IT IS FURTHER ORDERED that this action is DISMISSED, without
prejudice, as to defendant Brad Stotier in his official capacity. See 28 U.S.C. §
1915(e)(2)(B).
IT IS FURTHER ORDERED that, pursuant to the Court's differentiated case
management system, this case is assigned to Track 5B (standard prisoner actions).
A separate Order of Partial Dismissal will be filed separately.
Dated this 21st day of June, 2013.

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UNITED STATES DISTRICT JUDGE

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