Gabelman v. Ware et al

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.00 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 origin al proceeding. IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a copy of the Court's Prisoner Civil Rights Complaint form. IT IS FURTHER ORDERED that plaintiff has thirty (30) days from the date of this Memorandum and Order to file an amended complaint. IT IS FURTHER ORDERED that if plaintiff fails to file an amended complaint within thirty (30) days, this action will be dismissed. (Initial Partial Filing Fee due by 2/28/2013.) Signed by District Judge E. Richard Webber on January 29, 2013. (The Court's Prisoner Civil Rights Complaint form mailed to the petitioner this date.) (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
CORY GREGORY GABELMAN,
Plaintiff,
v.
ROGER WARE, et al.,
Defendants.

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No. 2:13CV00008 NAB

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Cory Gabelman (registration no.
1244463), an inmate at Randolph County Justice 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 $1.00.

See 28 U.S.C. § 1915(b)(1).

Additionally, the Court is required to review all complaints filed in forma pauperis.
After reviewing the complaint, the Court will direct plaintiff to submit an amended
complaint or face dismissal of this action.
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 a document from the Sheriff’s Office titled “Fee Book and
Sale Record,” which appears to be Randolph County’s rough equivalent of a prison
account statement. After reviewing the document, the Court finds that plaintiff can pay
an initial partial filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481, 484 (8th
Cir. 1997) (when a prisoner is unable to provide the Court with a certified copy of his
prison account statement, the Court should assess an amount “that is reasonable, based
on whatever information the court has about the prisoner’s finances.”).
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

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such relief. An action is frivolous if it “lacks an arguable basis in either law or fact.”
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 Complaint
Plaintiff brings this action under 42 U.S.C. § 1983 for alleged excess use of force
in violation of the Eighth Amendment. Named as defendants are Roger Ware and Earl
Edsley. Defendants are correctional officers at the Randolph County Justice Center.
Plaintiff asserts that on January 11, 2013, defendants informed him and his two
cellmates that they were not going to be allowed to watch that night’s movie because
of plaintiff’s behavior the previous evening, during which he had a panic attack.
Plaintiff says the three of them were very upset, and he says that his two cellmates
began hitting the windows and kicking the doors of the cell while plaintiff yelled “this
isn’t right.”

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Plaintiff claims that defendants Ware and Edsley came to the cell and asked
plaintiff’s cellmates to exit the cell. Plaintiff says defendants assumed he had been the
one kicking the cell doors. Plaintiff alleges that Ware and Edsley were cussing at him
while he had his hands behind his back, and he claims that Ware then sprayed mace on
his face while he was not resisting either defendant.
Plaintiff asserts that they then handcuffed him and put him in a restraint chair
without letting him wash the mace off. Plaintiff claims he stayed like that for two
hours, all the while he was having difficulty breathing and panicking. After two hours,
he alleges, defendant Edsley put him into a shower and told him to wash himself off,
but plaintiff says he could not apply water to himself because it hurt too much, so he
did not get washed off.
Plaintiff says he was taken from the shower to a rubber room where he requested
but was denied medical treatment for three days. Plaintiff allows that he received
medical treatment on the third day.
Discussion
The complaint is silent as to 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,

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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. 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.
However, the complaint contains serious allegations against the defendant
correctional officers. Rather than dismissing the complaint at this time, the Court will
allow the pro se plaintiff to file an amended complaint. Plaintiff has thirty days from
the date of this Order to file 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.

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Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of
$1.00 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 the Clerk shall mail to plaintiff a copy of
the Court’s Prisoner Civil Rights Complaint form.
IT IS FURTHER ORDERED that plaintiff has thirty (30) days from the date
of this Memorandum and Order to file an amended complaint.
IT IS FURTHER ORDERED that if plaintiff fails to file an amended complaint
within thirty (30) days, this action will be dismissed.
So Ordered this 29th day of January, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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