Stewart v. Greenwell et al

Filing 7

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Plaintiff's motion to proceed in forma pauperis [ECF No. 2 ] is DENIED. IT IS FURTHER ORDERED that the Clerk is directed to mail to Plaintiff blank copies of the Court's � 39;Prisoner Civil Rights Complaint' and 'Application to Proceed in District Court without Prepaying Fees or Costs' forms. IT IS FURTHER ORDERED that Plaintiff must file an amended complaint on the Court form within thirty (30) days o f the date of this Order. IT IS FURTHER ORDERED that Plaintiff must either pay the $402 filing fee or file an application to proceed without prepayment within thirty (30) days of the date of this Order. IT IS FURTHER ORDERED that if Plaintiff files an application to proceed without prepayment, he must also file a certified copy of his inmate account statement for the six-month period preceding the filing of the complaint. IT IS FINALLY ORDERED that if Plaintiff fails to timely comply wi th this Order, the Court will dismiss this action without prejudice and without further notice. ( Amended/Supplemental Pleadings due by 9/1/2022.) Signed by Magistrate Judge Shirley Padmore Mensah on 8/2/2022. (Attachments: # 1 Attachment Prisoner Civil Rights Complaint form, # 2 Attachment Application to Proceed without paying fees)(HMA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JAMES STEWART,
Plaintiff,
v.
TOMMY GREENWELL, et al.,
Defendants.

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No. 1:22-CV-66 SPM

MEMORANDUM AND ORDER
This matter comes before the Court on review of Plaintiff James Stewart’s self-represented
complaint. For the reasons discussed below, the Court will order Plaintiff to file a signed, amended
complaint on a court-provided form. Plaintiff will also be directed to either pay the full $402 filing
fee or file a new motion to proceed in forma pauperis. The motion to proceed in forma pauperis
currently before the Court contains no financial information and will be denied as defective.
Background
On March 11, 2022, Plaintiff James Stewart and another inmate at the Pemiscot County
Jail, Craig Hill, filed a joint complaint with this Court under 42 U.S.C. § 1983. See Hill v.
Greenwell, No. 1:22-CV-26-HEA (E.D. Mo.). The joint § 1983 complaint alleges constitutional
violations against Sheriff Tommy Greenwell, Chief Tony Jones, and two unknown insurance
companies that supposedly insure Greenwell and Jones. ECF No. 1 at 2-3. Because the Court
does not allow multiple prisoners to join together in a single lawsuit under Federal Rule of Civil
Procedure 20, Stewart was severed from the case and the instant case was opened on his behalf.
See ECF No. 4. The joint complaint and other motions filed in the initial case were used to open
the instant case.

Both Hill and Stewart’s signatures appear on the complaint, the motion for leave to
proceed in forma pauperis, and the motion to appoint counsel. See ECF Nos. 1-3. However,
unlike the signature on the complaint, Stewart’s signature on the two motions appears to be in the
same handwriting as Hill’s (and the same handwriting appearing on the rest of the two motion
documents). See ECF Nos. 2 at 2 & 3 at 1. In addition, unlike Hill, Stewart has not filed an inmate
account statement, or any supplemental filings clarifying his claims. See Hill, No. 1:22-CV-26HEA, ECF Nos. 5-7.
Discussion
Based on the pleadings currently before the Court, it is not clear that Plaintiff Stewart
wishes to pursue this § 1983 case on his own. Furthermore, the Court is cognizant of the potential
consequences to Plaintiff’s future ability to obtain in forma pauperis status were this action to
proceed to a dismissal based on frivolity, maliciousness, or failure to state a claim. See 28 U.S.C.
§ 1915(g) (the “three strikes” provision of the Prison Litigation Reform Act limits a prisoner’s
ability to obtain in forma pauperis status if he has filed at least three actions that have been
dismissed as frivolous, malicious, or for failure to state a claim). Therefore, the Court must ensure
that Plaintiff wishes to proceed independently in this matter and will require Plaintiff to file an
amended complaint on a court-provided form, asserting only his own claims. Additionally, the
motion to proceed in forma pauperis currently before the Court is defective and will be denied.
Plaintiff will be ordered to file a new application for leave to proceed in forma pauperis or pay the
full $402 filing fee. Plaintiff will have thirty (30) days to comply with this Order.
A. Motion to Proceed In Forma Pauperis
Under the Local Rules of this Court: “An application to proceed in forma pauperis shall be
accompanied by a statement of the applicant’s financial information set forth on a form provided

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by the Court. The Court may require the submission of additional information in a particular case.”
E.D. Mo. L.R. 2.05(A). Additionally, the Clerk can return any complaint submitted for filing in
forma pauperis that is not accompanied by an affidavit as required by 28 U.S.C. § 1915(a). E.D.
Mo. L.R. 2.05(C). Under 28 U.S.C. § 1915(a)(1), the affidavit should include “a statement of all
assets.” Furthermore, under Federal Rule of Civil Procedure 11, every written motion must be
signed “by a party personally if the party is unrepresented.”
The Court may authorize the commencement or prosecution of a civil action without
prepayment of fees if the plaintiff demonstrates that he “is unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a)(1). In forma pauperis status is a matter of privilege, not of right.
Williams v. McKenzie, 834 F.2d 152, 154 (8th Cir. 1987). To enjoy the statute’s benefits, a litigant
need not show that he is “absolutely destitute,” but he must demonstrate that, because of his
poverty, he cannot pay for the litigation costs and still be able to provide for the necessities of life.
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948); see also Lee v. McDonald’s
Corp., 231 F.3d 456, 459 (8th Cir. 2000). Determining whether to grant or deny in forma pauperis
status under § 1915 is within the sound discretion of the trial court. Lee, 231 F.3d at 458.
In this case, Plaintiff has purportedly signed the motion to proceed in forma pauperis;
however, the motion contains only illegible markings. See ECF No. 2. As this filing contains no
financial information, it is deficient for determining eligibility for in forma pauperis status. The
motion will be denied. In order for this case to proceed, Plaintiff will need to either file a new
motion for leave to proceed in forma pauperis with the required financial information or pay the
full $402 filing fee. Because Plaintiff is currently incarcerated, he must also provide the Court
with a certified prison account statement detailing the six months of his account activity prior to
filing the complaint.

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B. Amended Complaint
The complaint currently before the Court alleges violations of the rights of both Plaintiff
Stewart and fellow inmate Craig Hill. While federal law authorizes Plaintiff to plead his own case
personally, he lacks standing to bring claims on behalf of others. See Warth v. Seldin, 422 U.S.
490, 499 (1975) (stating that, in general, to satisfy the standing requirement, a plaintiff “must assert
his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests
of third parties.”). Moreover, a non-attorney, self-represented litigant may not represent someone
else in federal court. See 28 U.S.C. § 1654; Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)
(stating that “because pro se means to appear for one’s self, a person may not appear on another
person’s behalf in the other’s cause. A person must be litigating an interest personal to him.”);
Lewis v. Lenc–Smith Mfg. Co., 784 F.2d 829, 830 (7th Cir. 1986) (stating that a person who is not
licensed to practice law may not represent another individual in federal court).
Because Plaintiff is self-represented, the Court will give him the opportunity to file a
signed, amended complaint setting forth his own claims for relief. Plaintiff should type or neatly
print his amended complaint on the Court’s prisoner civil rights form, which will be provided to
him. See E.D. Mo. L.R. 2.06(A) (“All actions brought by self-represented plaintiffs or petitioners
should be filed on Court-provided forms where applicable.”). In the “Caption” section of the
Court-provided form, Plaintiff should clearly name each and every party he is intending to sue.
See Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the parties”).
In the “Statement of Claim” section, Plaintiff should provide a short and plain statement of
the factual allegations supporting his claim. See Fed. R. Civ. P. 8(a). Plaintiff should put each
claim into a numbered paragraph, and each paragraph should be “limited as far as practicable to a
single set of circumstances.” See Fed. R. Civ. P. 10(b). Plaintiff should begin by writing the

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defendant’s name. In separate, numbered paragraphs under that name, Plaintiff should write a
short and plain statement of the factual allegations supporting his claim against that specific
defendant. If Plaintiff is suing more than one defendant, he should follow the same procedure for
each defendant.
It is important that Plaintiff establish the responsibility of each separate defendant for
harming him. That is, for each defendant, Plaintiff must allege facts showing how that particular
defendant’s acts or omissions violated his constitutional rights. See Madewell v. Roberts, 909 F.2d
1203, 1208 (8th Cir. 1990) (“Liability under § 1983 requires a causal link to, and direct
responsibility for, the deprivation of rights.”). It is not enough for Plaintiff to make general
allegations against all the defendants as a group. Rather, Plaintiff needs to provide the role of each
named defendant in this case, in order that each specific defendant can know what he or she is
accused of doing. Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014)
(stating that the essential function of a complaint “is to give the opposing party fair notice of the
nature and basis or grounds for a claim”) (internal quotations and citation omitted). The Court
emphasizes that the “Statement of Claim” requires more than “labels and conclusions or a
formulaic recitation of the elements of a cause of action.” Neubauer v. FedEx Corp., 849 F.3d
400, 404 (8th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Plaintiff is warned that the filing of an amended complaint completely replaces the
original complaint. This means that claims that are not re-alleged in the amended complaint will
be deemed abandoned. See In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928
(8th Cir. 2005) (“It is well-established that an amended complaint supercedes an original complaint
and renders the original complaint without legal effect”).

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Conclusion
Plaintiff will be given thirty (30) days in which to comply with this Order. Failure to
submit an amended complaint on a Court-provided form, and to either pay the $402 filing fee or
file a motion to proceed in forma pauperis accompanied by an account statement, will result in the
dismissal of this action without prejudice and without further notice.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion to proceed in forma pauperis [ECF
No. 2] is DENIED.
IT IS FURTHER ORDERED that the Clerk is directed to mail to Plaintiff blank copies
of the Court’s ‘Prisoner Civil Rights Complaint’ and ‘Application to Proceed in District Court
without Prepaying Fees or Costs’ forms.
IT IS FURTHER ORDERED that Plaintiff must file an amended complaint on the Court
form within thirty (30) days of the date of this Order.
IT IS FURTHER ORDERED that Plaintiff must either pay the $402 filing fee or file an
application to proceed without prepayment within thirty (30) days of the date of this Order.
IT IS FURTHER ORDERED that if Plaintiff files an application to proceed without
prepayment, he must also file a certified copy of his inmate account statement for the six-month
period preceding the filing of the complaint.
IT IS FINALLY ORDERED that if Plaintiff fails to timely comply with this Order, the
Court will dismiss this action without prejudice and without further notice.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 2nd day of August, 2022.
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