Pritchett v. Wallace et al
MEMORANDUM AND ORDER.. IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. 2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.70 within thirty (30) days of the date of this Or der. IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a copy of the Courts' Prisoner Civil Rights Complaint form. IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint within thirty (30) days of the date of this Memorandum and Order. IT IS FURTHER ORDERED that if plaintiff fails to comply with this Memorandum and Order, this action will be dismissed. ( Response to Court due by 9/11/2013.) Signed by District Judge Stephen N. Limbaugh, Jr on 8/12/13. (MRS)
Pritchett v. Wallace et al
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
IAN WALLACE, et al.,
No. 1:13CV100 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Eric Pritchett (registration
no. 1176335), an inmate at Southeast Correctional Center, for leave to commence this
action without payment of the required filing fee. 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 direct plaintiff to submit 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
$8.50, and an average monthly balance of less than $8.50. Plaintiff has insufficient
funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial
filing fee of $1.70, 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, 504 U.S.
25, 31 (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,
550 U.S. 544, 570 (2007).
Plaintiff brings this action under 42 U.S.C. § 1983 against twenty-four officials
of the Southeast Correctional Center (“SECC”). Plaintiff alleges that he has been
denied legal materials, which has caused him harm in a criminal appeal. He says that
several of the defendants retaliated against him after he asked for grievance forms.
He claims that he has been denied any opportunity to exercise for several months. He
maintains that one defendant pepper sprayed him while he was restrained. And he
brings other claims as well.
Many of plaintiff’s claims state a facially plausible claim for relief. However,
the complaint is subject to dismissal under 28 U.S.C. § 1915(e).
The complaint is silent as to whether defendants are being sued in their official
or individual capacities. Where a “complaint is silent about the capacity in which
[plaintiff] is suing defendant, [a district court must] interpret the complaint as
including only official-capacity claims.” Egerdahl v. Hibbing Community College,
72 F.3d 615, 619 (8th Cir. 1995); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989).
Naming a government official in his or her official capacity is the equivalent of
naming the government entity that employs the official, in this case the State of
Missouri. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). “[N]either
a State nor its officials acting in their official capacity are ‘persons’ under § 1983.”
Id. As a result, the complaint fails to state a claim upon which relief can be granted.
Because plaintiff is proceeding pro se, the Court will allow plaintiff to file an
amended complaint rather than dismissing this action summarily. Plaintiff shall have
thirty days from the date of this Order to file an amended complaint. Plaintiff is
warned that the filing of an amended complaint replaces the original complaint, and
claims that are not realleged are deemed abandoned. E.g., In re Wireless Telephone
Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). If plaintiff
fails to file an amended complaint within thirty days, the Court will dismiss this
action without prejudice.
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $1.70 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 mail to plaintiff a copy of
the Courts’ Prisoner Civil Rights Complaint form.
IT IS FURTHER ORDERED that plaintiff shall submit an amended
complaint within thirty (30) days of the date of this Memorandum and Order.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this
Memorandum and Order, this action will be dismissed.
Dated this 12th day of August, 2013.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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