Downs v. Green et al

Filing 10

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Michael Jerome Downs, 9 MOTION to Appoint Counsel filed by Plaintiff Michael Jerome Downs, 5 MOTION to Appoint Counsel fi led by Plaintiff Michael Jerome Downs. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED.IT IS FURTHER ORDERED the Clerk of Court shall not issue process upon the complaint because it is duplicative of the third amended complaint filed in Michael Jerome Downs v. Nicole Green, et al., No. 1:17-CV-135 CDP (E.D. Mo.), which is currently pending before the Court. IT IS FURTHER ORDERED that all pending motions in this action are DENIED AS MOOT. An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Stephen N. Limbaugh, Jr on 8/6/18. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
MICHAEL J. DOWNS,
Plaintiff,
v.
NICOLE GREEN, et al.,
Defendants.

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No. 1:18-CV-42 NAB

MEMORANDUM AND ORDER
Plaintiff, an inmate at the Dunklin County Justice Center, seeks leave to proceed in forma
pauperis in this civil action under 42 U.S.C. § 1983. Having reviewed plaintiff’s complaint
under 28 U.S.C. § 1915(e), the Court finds it duplicative of plaintiff’s pending case, Downs v.
Green, et al., No. 1:17-CV-135 CDP (E.D. Mo), and will dismiss the complaint without
prejudice for this reason.
Legal Standard on Initial 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, 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.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
The Complaint
Plaintiff’s complaint is similar to the allegations contained in the third amended
complaint plaintiff’s appointed counsel filed in Downs v. Green, et al., No. 1:17-CV-135 CDP
(E.D. Mo.) (“Downs I”). In that case, plaintiff asserts that he was subjected to cruel and unusual
punishment during his incarceration at the Dunklin County Jail and during the course of his
arrest by City of Malden police officers.
On January 19, 2018, in Downs I, the Court entered an order issuing process on the
amended complaint on defendants Nicole Green, Jimmy Smith, and Kyle Simms in their
individual capacities. See Downs I, ECF No. 15. The Court dismissed without prejudice
plaintiff’s claims against defendants Ashley Green and Dr. Unknown Pewitt. Id. On May 14,
2018, the Court granted plaintiff counsel in Downs I. Counsel for plaintiff filed a third amended
complaint on June 29, 2018. See Downs I, ECF No. 41. Summons have recently been issued as to
defendants Nicole Green, Jimmy Smith, Kyle Simms, Denise Summers, Jarret Bullock, Dunklin
County, Missouri, Bob Holder and the City of Malden, Missouri, who are all named defendants
in the present action.
In light of the aforementioned, and because plaintiff is represented by counsel in Downs
I, the Court will dismiss plaintiff’s complaint in this action as duplicative under § 1915(e).
Accordingly,

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IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [Doc.
#2] is GRANTED.
IT IS FURTHER ORDERED the Clerk of Court shall not issue process upon the
complaint because it is duplicative of the third amended complaint filed in Michael Jerome
Downs v. Nicole Green, et al., No. 1:17-CV-135 CDP (E.D. Mo.), which is currently pending
before the Court.
IT IS FURTHER ORDERED that all pending motions in this action are DENIED AS
MOOT.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 6th day of August, 2018.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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