Lesley v. Teague et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF No.[ 2]] is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $45.00 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 origina l 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 file an amended complaint within thirty (30) days of the date of this Order. IT IS FUR THER ORDERED that if plaintiff fails to comply with this Order, the Court will dismiss this action without further proceedings. ( Initial Partial Filing Fee due by 10/10/2015., Response to Court due by 9/25/2015.) Signed by Magistrate Judge David D. Noce on 8/26/15. (JAB) (Remark: Prisoner Civil rights complaint form and copy of this order mailed to plaintiff)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
RICHARD W. LESLEY,
MS. JANE DOE TEAGUE, et al.,
No. 2:15CV59 DDN
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 $45.00, which is twenty percent of his average monthly deposit. See 28
U.S.C. § 1915(b).
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.
Plaintiff brings this action against several officials at the Moberly Correctional Center.
Plaintiff alleges that defendant Teague seized his CDs and cited him for contraband. Plaintiff
objected to the citation. Plaintiff says that defendant Thompson put him in a suicide cell and
then proceeded to soak him with pepper spray. Plaintiff claims he was not allowed to wash it off
for about four days and he suffered permanent damage to one of his eyes. Plaintiff asserts that
he was not allowed to see any medical staff.
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, 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, 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.
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, 129 S. Ct. 1937, 1948 (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.”). Plaintiff has only alleged direct involvement by defendant
Thompson. So, his claims against the remaining defendants fail for this reason as well.
Because plaintiff is proceeding pro se, the Court will allow him to file an amended
complaint, and he has thirty days from the date of this Order to do so. 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 the amended complaint will be considered
abandoned. Id. In order to sue defendants in their individual capacities, plaintiff must
specifically say so in the complaint. If plaintiff fails to file an amended complaint within thirty
days, the Court will dismiss this action without prejudice.
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $45.00
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
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 file an amended complaint within
thirty (30) days of the date of this Order.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court
will dismiss this action without further proceedings.
/s/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on August 26, 2015.
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