Lockhart v. Reese et al

Filing 9

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Marquise Lockhart motion is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $10 within twenty-one (21) 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 is directed to send plaintiff a prisoner civil rights complaint form. IT IS FURTHER ORDERED that plaintiff must submit an amended complaint within twenty -one (21) days from the date of this Order. IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court will dismiss this action without prejudice.(Amended/Supplemental Pleadings due by 5/31/2016, Initial Partial Filing Fee due by 5/31/2016.) Signed by District Judge Stephen N. Limbaugh, Jr on 5/10/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
MARQUISE LOCKHART,
Plaintiff,
v.
CYNTHIA REESE, et al.,
Defendants.

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No. 1:16CV63 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 $10, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, the Court will require plaintiff to submit an amended complaint.
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.
The Complaint
Plaintiff alleges that he has bipolar disorder and that on April 5, 2015, he told prison
officials he was feeling suicidal and homicidal. Defendant Reese evaluated plaintiff seventeen
hours later and sent him back to his cell because she did not believe he was either suicidal or
homicidal. Reese interviewed him again on April 7, 2015, and he told her he was still suicidal
and homicidal. He asked that his cellmate be removed from their cell.
An hour later, defendants Hancock, Sisk, and Mills took him back to his cell. Defendants
moved plaintiff’s cellmate to a different cell and stripped plaintiff of his property. Defendants
then brought another suicidal inmate to plaintiff’s cell. Plaintiff told defendants he was not
comfortable being with another inmate. He says they encouraged the other inmate to attack him.
Later that night, the other inmate attacked plaintiff. The two fought until defendant Mills
sprayed them with mace.
Mills put plaintiff on a restraint bench. Plaintiff alleges that he had a wrist fracture, facial
injuries, and bruised ribs but that Mills told the nurse not to assess him. Plaintiff was then put in
a dry cell and was not allowed to wash off the mace.
Discussion
The complaint does not state 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

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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. 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 $10
within twenty-one (21) 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.1

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Prisoners must pay the full amount of the $350 filing fee. 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

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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-one (21) days from the date of this Order.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court
will dismiss this action without prejudice.
Dated this 10th day of May, 2016.

STEHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

prisoner’s account. The agency having custody of the prisoner will deduct the payments and forward them to the
Court each time the amount in the account exceeds $10. 28 U.S.C. § 1915(b)(2).

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