Beckermann v. Hickey et al
Filing
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MEMORANDUM AND ORDER: 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 must pay an initial filing fee of $4.80 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 a n original proceeding. IT IS FURTHER ORDERED that the Clerk is directed to send plaintiff a prisoner civil rights complaint form.IT IS FURTHER ORDERED that plaintiff must submit an amended complaint within twenty-eight (28) days of the date of this Order. ( Amended/Supplemental Pleadings due by 12/22/2015., Initial Partial Filing Fee due by 12/24/2015.) Signed by District Judge Stephen N. Limbaugh, Jr on 11/24/2015. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JEFFREY A. BECKERMAN,
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Plaintiff,
v.
BRANDY L. HICKEY, et al.,
Defendants.
No. 1:15CV209 SNLJ
MEMORANDUM AND ORDER
Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action
under 42 U.S.C. § 1983. Having reviewed plaintiff’s financial information, the Court
assesses a partial initial filing fee of $4.80, which is twenty percent of his average
monthly deposit. See 28 U.S.C. § 1915(b).
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in
forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can
be granted. To state a claim for relief under § 1983, a complaint must plead more than
“legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that
are] supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a
“mere possibility of misconduct.” Id. at 679. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether a
complaint states a plausible claim for relief [is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense. Id. at 679.
Discussion
Plaintiff alleges that defendants failed to properly treat his hand injury and that he
later had to get surgery for it.
Plaintiff’s allegations are wholly conclusory.
It is not enough to say that
defendants acted “willfully and maliciously” or that his hand injury was “obvious and
serious.” Plaintiff must allege the specific facts that show his injury was serious and that
defendants deliberately disregarded it. That is, he must state the “who, what, when,
where, and how” of what occurred that resulted in the alleged constitutional violation.
Additionally, plaintiff did not specify whether he is suing defendants 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. 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, 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
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alleged violations of plaintiff’s constitutional rights. 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. Plaintiff is warned that 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.
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 must pay an initial filing fee of
$4.80 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.
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IT IS FURTHER ORDERED that the Clerk is directed to send plaintiff a
prisoner civil rights complaint form.
IT IS FURTHER ORDERED that plaintiff must submit an amended complaint
within twenty-eight (28) days of the date of this Order.
Dated this 24th day of November, 2015.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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