Williams v. Funk et al

Filing 7

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. 5] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $34.03 within thirty (30) days of the date of this Ord er. 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 theremittance is for an original proceeding . IT IS FURTHER ORDERED that plaintiff may file an amended complaint within thirty (30) days of the date of this order. If plaintiff fails to timely file an amended complaint, this action will be dismissed. 5 ( Initial Partial Filing Fee due by 10/21/2011., Response to Court due by 10/21/2011.). Signed by Honorable Jean C. Hamilton on 9/21/11. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
RONALD WILLIAMS,
Plaintiff,
v.
UNKNOWN FUNK, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 2:11CV59 JCH

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Ronald Williams (registration
no. 1133426), an inmate at Northeast Correctional Center, for leave to commence this
action without payment of the required filing fee. For the reasons stated below, the
Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and
will assess an initial partial filing fee of $34.03. See 28 U.S.C. § 1915(b)(1).
Furthermore, the Court finds that the amended complaint fails to state a claim upon
which relief can be granted, and the Court will grant plaintiff leave to file an amended
complaint.
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma
pauperis is required to pay the full amount of the filing fee. If the prisoner has
insufficient funds in his or her prison account to pay the entire fee, the Court must

assess and, when funds exist, collect an initial partial filing fee of 20 percent of the
greater of (1) the average monthly deposits in the prisoner’s account, or (2) the average
monthly balance in the prisoner’s account for the prior six-month period. 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. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will
forward these monthly payments to the Clerk of Court each time the amount in the
prisoner’s account exceeds $10, until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account
statement for the six-month period immediately preceding the submission of his
complaint. A review of plaintiff’s account indicates an average monthly deposit of
$170.17, and an average monthly balance of $23.19. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $34.03, which is 20 percent of plaintiff’s average monthly deposit.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed
in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a defendant who is immune from
such relief. An action is frivolous if it “lacks an arguable basis in either law or fact.”

-2-

Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 504 U.S. 25, 31
(1992). An action is malicious if it is undertaken for the purpose of harassing the
named defendants and not for the purpose of vindicating a cognizable right. Spencer
v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir.
1987). A complaint fails to state a claim if it does not plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007).
The Amended Complaint
Plaintiff brings this official capacity suit under 42 U.S.C. § 1983 against several
officials at the Northeast Correctional Center for alleged medical mistreatment,
retaliation, and denial of access to the courts.
Discussion
Naming a government official in his or her official 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 shall have thirty days from the date of this Order to file

-3-

an amended complaint. Plaintiff is warned that the filing of an amended complaint
replaces the original complaint, and claims that are not realleged are deemed
abandoned. E.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396
F.3d 922, 928 (8th Cir. 2005). If plaintiff fails to file an amended complaint within
thirty days, the Court will dismiss this action without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. 5] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of
$34.03 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.
IT IS FURTHER ORDERED that plaintiff may file an amended complaint
within thirty (30) days of the date of this order. If plaintiff fails to timely file an
amended complaint, this action will be dismissed.
Dated this 21st

day of September, 2011.

/s/Jean C. Hamilton
JEAN C. HAMILTON
-4-

UNITED STATES DISTRICT JUDGE

-5-