Simmons v. Dodson et al

Filing 11

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Richard L. Simmons motion is GRANTED. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $11.82 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Cou rt," 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 prisoner civil rights c omplaint form. IT IS FURTHER ORDERED that plaintiff shall file 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 case will be dismissed without prejudice. (Initial Partial Filing Fee due by 2/5/2015, Response to Court due by 2/5/2015.) Signed by District Judge Stephen N. Limbaugh, Jr on 1/6/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RICHARD L. SIMMONS,

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Plaintiff,
v.
DANNY DODSON, et al.,
Defendants.

No. 1:14CV167 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Richard Simmons (registration no.
1030094), 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 $11.82. Additionally, the Court finds that the complaint is defective, but the Court will
allow 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 sixmonth 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 $59.08, and an average monthly
balance of less than $59.08.

Plaintiff has insufficient funds to pay the entire filing fee.

Accordingly, the Court will assess an initial partial filing fee of $11.82, 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 Alacks 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. A complaint fails to state a claim if it does not plead Aenough
facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983. The complaint is a long and rambling
document that seems primarily concerned with accusing defendant Danny Dodson, who is a
medical officer at the Pemiscot County Jail, of stealing plaintiff’s social security checks and of
insurance fraud.

The complaint is almost entirely conclusory and reads at times like an

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indictment, charging Dodson with criminal behavior. At twenty-nine pages, the complaint is
overly long and complex.
Discussion
Title 42 U.S.C. § 1983 protects citizens from constitutional violations by state actors.
Most of plaintiff’s allegations do not rise to the level of a constitutional violation, such as his
allegations concerning insurance fraud. Similarly, his allegations against non-state actors, such
as Jim Brands, a pharmacy owner, do not state a claim under § 1983.
Rule 8 of the Federal Rules of Civil Procedure requires plaintiffs to state their claims in
“short and plain” factual statements. It is not necessary or advised for pro se plaintiffs to put
legal statements in their complaints. Plaintiff’s complaint is not short and plain. Additionally, it
contains far too many legal statements. As a result, it is difficult for the Court to review, and it
would be difficult for defendants to formulate a responsive pleading to it. Therefore, the Court
will require plaintiff to file an amended complaint.
Also, it seems that plaintiff has brought several claims against defendants that are
unrelated. Federal Rule of Civil Procedure 20(a)(2) 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, “Claim A against Defendant 1 should not be joined with unrelated
Claim B against Defendant 2.”

George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). For

example, plaintiff’s claims against defendant James Atchison, a city commissioner, seem
unrelated to his claims against Brands, the pharmacy owner.
Plaintiff’s amended complaint must comply with the Federal Rules of Civil Procedure.
The complaint must contain a clear list of the named defendants in or near the caption. Each of

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his factual allegations must be stated in a short and plain fashion. Plaintiff should attempt to
state clearly his claims for relief at the end of the complaint, stating which defendant applies to
each individual claim for relief. Plaintiff should avoid making legal arguments. Moreover,
plaintiff is instructed that the Court does not charge individuals with crimes. If plaintiff believes
a crime has been committed, he should contact the relevant prosecutorial agency.
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.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $11.82
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 prisoner civil rights
complaint form.
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint within
thirty (30) days of the date of this Memorandum and Order.

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IT IS FURTHER ORDERED that if plaintiff fails to comply with this Memorandum
and Order, this case will be dismissed without prejudice.
Dated this 6th day of January, 2015.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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