Ewing v. Wallace et al
Filing
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MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #5] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $5.37 within thirty (30) days of the date of t his Order. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint at this time. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint within thirty (30) days from the date of this Orde r, in accordance with the specificinstructions set forth above. IT IS FURTHER ORDERED that plaintiff's motions for extension of time, his motions for joinder and to amend, his motion to produce, his motion to add party, his motion for appointmen t of counsel, and his motion for temporary restraining order [Doc. #2, #3, #7, #8, #12 and #13] are DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff the Court's form for filing a complaint pursuant to 42 U.S .C. § 1983. IT IS FURTHER ORDERED that plaintiff's failure to amend his complaintin accordance with this Court's instructions will result in the dismissal of this action, without prejudice and without further notice to him.( Initial Partial Filing Fee due by 9/25/2013., Response to Court due by 9/25/2013.). Signed by District Judge Stephen N. Limbaugh, Jr on 8/26/13. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JERMAINE S. EWING,
Plaintiff,
v.
IAN WALLACE, et al.,
Defendants.
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No. 1:13CV71 LMB
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
517914), an inmate at Southeast Correctional Center ("SECC"), for leave to commence
this action without payment of the required filing fee [Doc. #5]. For the reasons stated
below, the Court finds that the plaintiff does not have sufficient funds to pay the entire
filing fee and will assess an initial partial filing fee of $5.37. See 28 U.S.C. §
1915(b)(1). Furthermore, after reviewing the complaint, the Court will order plaintiff
to file an amended complaint on a court-provided form.
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
$26.83, and an average monthly balance of $20.10. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $5.37, 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). An action is malicious if it is
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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).
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 “contextspecific 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.
The Complaint
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Plaintiff, an inmate at SECC, brings this action pursuant to 42 U.S.C. § 1983
alleging violations of his civil rights. Named as defendants are: Ian Wallace
(Warden); T. Vandergriff (Captain); Unknown Hopkins (Correctional Officer); R.
Lincoln (Correctional Officer); Unknown Tyler (Correctional Officer); Unknown
Boyet (Correctional Officer); Unknown Robinson (Correctional Officer); D. Gibson
(Nurse, Corizon, Inc.); D. Nix-Deagan (Nurse, Corizon, Inc.); and J. Derring (Mental
Health Professional, Corizon, Inc.).
Plaintiff asserts that on April 9, 2013, he tried to commit suicide by attempting
to hang himself in his Administrative Segregation cell. Plaintiff claims he was then
placed on "Full Suicide Watch" by defendant Vandergriff. Plaintiff states that
defendant Vandergriff ordered that he be placed in a cell without any clothing or
bedding, not even a security smock, subjecting him to cruel and unusual punishment
under the Eighth Amendment. Plaintiff claims that these actions were approved by
defendant Derring, the Mental Health Professional at SECC.
Plaintiff states that even though he was under "Full Suicide Watch," on April
13, 2013, defendants Tyler and Boyet, placed multiple sheets in his cell, failing to
protect plaintiff from harm. He asserts that as a result of having access to sheets,
plaintiff again attempted suicide by hanging.
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Plaintiff asserts that Control Room Officer, defendant Robinson, who was
charged with observing the cameras in "close observation," failed to intervene in a
timely manner when plaintiff attempted suicide.
Plaintiff additionally states that defendant Lincoln, defendant Tyler's supervisor,
acted unlawfully by failing to protect plaintiff from defendant Tyler's actions.
Although plaintiff has not made any explicit allegations against defendant Wallace, it
appears that he has named defendant Wallace in this action in an attempt to find him
liable due to his supervisory liability over the other correctional defendants.
Plaintiff asserts that defendants Vandergriff and Hopkins failed to protect
plaintiff when they assigned defendant Tyler to "close observation" of plaintiff even
after the April 13, 2013 incident, resulting in defendant Tyler "attempting to coerce,
intimidate, harass and threaten plaintiff" to blame the incident solely on defendant
Boyet.
Plaintiff further claims that defendants Boyet, Robinson, Lincoln, Tyler,
Vandergriff and Hopkins acted unlawfully when they failed to report the April 13,
2013 incident as "offender abuse" in accordance with the Missouri Statutes.
Last, plaintiff claims that nurses Gibson and Nix-Deagan were deliberately
indifferent to his serious medical needs when they gave him "zero treatment for neck
injury or neck and back pain" after he attempted suicide on April 13, 2013.
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Discussion
The Court has reviewed the complaint under 28 U.S.C. § 1915and believes that,
although plaintiff may be able to assert a claim based upon the denial of his
Constitutional rights, he has failed to state a claim upon which relief may be granted
at this time, because the complaint is silent as to whether he is suing the named
defendants in their official and/or individual capacities.
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 on a Court
form, setting forth the capacity (i.e., official and/or individual) in which he is suing
each of the named defendants. Moreover, 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 reminded that his amended complaint will supersede his original complaint
and will be the only complaint this Court reviews. Thus, plaintiff must include in the
"Caption" of the amended complaint the names of all defendants he wishes to sue in
this action; in the "Statement of Claim," he must set out, in separate numbered
paragraphs, specific facts against each named defendant, and he must state whether he
is suing each defendant in his individual and/or official capacity; and in the "Relief"
section, he must briefly set out what he wants the Court to do for him. Plaintiff must
also sign the amended complaint.
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Because plaintiff will be filing an amended complaint before this Court, the
Court will deny his pending motions, without prejudice, at this time.1
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #5] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $5.37 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 the Clerk shall not issue process or cause
process to issue upon the complaint at this time.
1
Plaintiff has filed various motions for discovery and for joinder, as well as a
request for temporary restraining order. Discovery cannot commence prior to this
Court's review of plaintiff's pleadings under 28 U.S.C. § 1915 and service of
process on defendants. Moreover, plaintiff will not be allowed to amend his
pleadings in a piecemeal fashion through multiple requests for "joinder." All of his
allegations against all of the parties he wishes to bring claims against must be
brought in the amended complaint. Plaintiff's summary request for temporary
restraining order will also be denied without prejudice, as plaintiff seeks a broad
order from this Court, without any accompanying facts or caselaw, restraining the
ten (10) named defendants, who work at plaintiff's place of incarceration, from
"coming within 500 yards of the plaintiff in this cause." Plaintiff has not argued
properly for a restraining order in this Court, pursuant to Dataphase Sys. v. CL
Sys., 640 F.2d 109, 113-14 (8th Cir. 1981). As such, his request will be denied.
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IT IS FURTHER ORDERED that plaintiff shall file an amended complaint
within thirty (30) days from the date of this Order, in accordance with the specific
instructions set forth above.2
IT IS FURTHER ORDERED that plaintiff's motions for extension of time,
his motions for joinder and to amend, his motion to produce, his motion to add party,
his motion for appointment of counsel, and his motion for temporary restraining order
[Doc. #2, #3, #7, #8, #12 and #13] are DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff the Court's
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 and without further notice to him.
Dated this 26th day of August, 2013.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
2
For his amended complaint, plaintiff shall use the court-provided form for
filing a complaint pursuant to 42 U.S.C. § 1983.
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