Kelly v. U.S. Marshals Service et al

Filing 9

MEMORANDUM AND ORDER re: 7 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff John Kelly, 3 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff John Kelly motion is GRANTED.IT IS HEREBY ORDERED that plaintiff 9;s motion to proceed in forma pauperis [ECF No. 7] is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $34 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance paya ble 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 complete the form and submit a second amended complaint within thirty (30) days of the date of this Order. Failure to do so will result in the dismissal of this action without prejudice. (Amended/Supplemental Pleadings due by 8/25/2016, Initial Partial Filing Fee due by 8/25/2016.) Signed by District Judge Stephen N. Limbaugh, Jr on 7/26/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JOHN KELLY,
Plaintiff,
v.
U.S. MARSHALS SERVICE, et al.,
Defendants.

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No. 1:16-CV-169 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 $34, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, the Court will order 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 brings this action for deliberate indifference to his serious medical needs. In the
amended complaint, plaintiff names the Dunklin County Justice Department, Nicole Green, and
Bob Holder as defendants. He seeks injunctive and monetary relief.
Plaintiff fractured bones in his hand on June 12, 2016. He notified defendant Green, who
is the Jail Supervisor, and she sent him to see a nurse. He says he was told that the U.S.
Marshals Service had to approve his request for medical treatment. On June 30, defendant
Holder, the Dunklin County Sheriff, sent plaintiff to see a doctor. The doctor took an X-ray and
told plaintiff he needed treatment. The doctor explained that too much time had elapsed between
the injury and the X-ray for regular treatment; plaintiff’s hand would have to be re-fractured in
order to set correctly.
Discussion
The complaint is frivolous against the Dunklin County Justice Department because
municipal departments cannot be held liable under § 1983. Ketchum v. City of West Memphis,
Ark., 974 F.2d 81, 82 (1992).
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.

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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 alleged
violations of plaintiff’s constitutional rights. As a result, the complaint fails to state a claim upon
which relief can be granted.
Additionally, “[l]iability under § 1983 requires a causal link to, and direct responsibility
for, the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.
1990); see Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is
inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.”);
Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) (“a general responsibility for
supervising the operations of a prison is insufficient to establish the personal involvement
required to support liability.”). In the amended complaint, plaintiff has not explained how
defendants Green or Holder caused the delay in receiving medical care. He only alleges that
they sent him to get medical treatment. This is insufficient to state a claim for relief under
§ 1983.
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

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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. 7] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $34
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.1
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 complete the form and submit a
second amended complaint within thirty (30) days of the date of this Order. Failure to do so will
result in the dismissal of this action without prejudice.
Dated this 26th day of July, 2016.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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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
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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