Mitchell v. Akins
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff must file an amended complaint within twenty-one days of the date of this Order.IT IS FURTHER ORDERED that the Clerk is directed to mail plaintiff a prisoner civil rights complaint form. Amended/Supplemental Pleadings due by 1/4/2016. Signed by District Judge Stephen N. Limbaugh, Jr on 12/14/15. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DEMARIO MARKEL MITCHELL,
No. 1:15CV189 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s response to the Court’s show cause order.
Plaintiff has been unable to pay the filing fee because he lacks adequate funds. And he says he
has not been able to file an amended complaint because he does not have access to a law library.
The Court will not dismiss this case because plaintiff is unable to afford the initial filing
fee. Plaintiff should endeavor to pay it when he has the funds. He also may pay an initial filing
fee of $1.00.
Plaintiff should be able to file an amended complaint without looking up case law. The
Federal Rules of Civil Procedure only require that a plaintiff write out a “short and plain
statement of the claim showing that the [plaintiff] is entitled to relief . . .” Fed. R. Civ. P. 8(a).
So, plaintiff only need describe the facts of the assault, i.e., the “how, what, when, where.”
The Court reminds plaintiff that there are other requirements for pleading a case under 42
U.S.C. § 1983: The filing of an amended complaint replaces the original complaint, and so
he must include each and every one of his claims in the amended complaint. E.g., In re
Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005).
Any claims from the original complaint that are not included in the amended complaint
will be considered abandoned. Id. Plaintiff must allege how each and every defendant is
directly responsible for the alleged harm. In order to sue defendants in their individual
capacities, plaintiff must specifically say so in the complaint.
If plaintiff fails to sue
defendants in their individual capacities, this action may be subject to dismissal.
IT IS HEREBY ORDERED that plaintiff must file an amended complaint within
twenty-one days of the date of this Order.
IT IS FURTHER ORDERED that the Clerk is directed to mail plaintiff a prisoner civil
rights complaint form.
Dated this 14th day of December, 2015.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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