Anthony v. Stockton 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 plaintiff shall pay an initial filing fee of $2.70 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 fo r an original proceeding. IT IS FURTHER ORDERED that, on or before December 3, 2015, plaintiff shall file an amended complaint on a Court-provided form, in accordance with the instructions set forth above. IT IS FURTHER ORDERED that the Clerk shal l mail plaintiff a copy of the Court's form "Motion to Proceed in Forma Pauperis - Prisoner Cases" and a form prisoner complaint for filing a civil rights action. IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court will dismiss this action without prejudice and without further notice. Signed by District Judge E. Richard Webber on 11/3/15. (EAB) (Copy of this order and instructed documents mailed to plaintiff on 11/3/15). (EAB).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
MARCUS TREMAYNE ANTHONY,
Plaintiff,
v.
FREDERICK STOCKTON, et al.,
Defendants.

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No. 2:15-CV-74-ERW

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for leave to commence
this action without payment of the required filing fee. The motion will be granted,
and plaintiff will be assessed an initial partial filing fee of $2.70, which is twenty
percent of his six-month average deposit of $13.50. See 28 U.S.C. ' 1915(b)(1).
Furthermore, the Court will order plaintiff to file an amended complaint.
28 U.S.C. ' 1915(e)
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court may 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 against a defendant who is
immune from such relief. An action is frivolous if Ait lacks an arguable basis in
either law or in fact.@ Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action
fails to state a claim upon which relief can be granted if it does not plead Aenough

facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
In reviewing a pro se complaint under ' 1915(e)(2)(B), the Court must give
the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519,
520 (1972). The Court must also weigh all factual allegations in favor of the
plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504
U.S. 25, 32-33 (1992).
The Complaint
Plaintiff, an inmate at the Jefferson City Correctional Center, seeks monetary
relief in this action for the violation of his constitutional rights under 42 U.S.C. '
1983.

Plaintiff=s allegations arise out of his incarceration at the Northeast

Correctional Center (NECC) in July 2014. Named as defendants are Frederick
Stockton (NECC Lieutenant), Jacob Baker (NECC Sergeant), and Jose Riveria
(NECC Correctional Officer). Plaintiff states that he is suing defendants in their
individual capacities.
Plaintiff’s allegations arise out of an alleged excessive-use-of-force incident
that occurred at NECC on July 11, 2014; however, it is unclear to the Court precisely
what plaintiff’s claims are against each of the three named defendants.

In

particular, plaintiff’s claims against defendants Stockton and Baker are conclusory
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and are not supported by sufficient factual allegations.

Because plaintiff is

proceeding pro se, the Court will instruct him to file an amended complaint on a
Court form in accordance with the instructions set forth below. See Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009) (legal conclusions and threadbare recitals of the
elements of a cause of action that are supported by mere conclusory statements are
not entitled to the assumption of truth). If plaintiff fails to comply with the Court’s
order, this action will be dismissed without prejudice and without further notice.
All claims in an action must be included in one, centralized complaint form,
as neither the Court nor defendants wish to search through supplemental and prior
pleadings in order to piece together plaintiff=s claims. As such, plaintiff is warned
that the filing of an amended complaint replaces the original complaint and all
previously-filed pleadings, supplements, and attachments thereto, and
therefore, he must include each and every one of the claims he wishes to pursue
in the amended complaint. See, e.g., In re Wireless Tel. Fed. Cost Recovery Fees
Litig., 396 F.3d 922, 928 (8th Cir. 2005).

Any claims from the original

complaint, supplements, and/or pleadings that are not included in the amended
complaint will be deemed abandoned and will not be considered. Id. Plaintiff
is advised that the amended complaint will replace the original complaint and
will be the only pleading this Court reviews. Id. If plaintiff wishes to sue
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defendants in their individual capacities, plaintiff must specifically say so in the
amended complaint. Plaintiff should not attach any exhibits to the amended
complaint; all claims should be clearly set forth in the "Statement of Claim."
In addition, in the "Caption" of the amended complaint, plaintiff shall set forth
the name of each defendant he wishes to sue; and in the "Statement of Claim,"
plaintiff shall start by typing the first defendant=s name, and under that name, he
shall set forth in separate numbered paragraphs the specific allegations supporting
his claim(s) as to that particular defendant, as well as the right(s) that he claims that
particular defendant violated and the capacity in which the defendant is being sued.
Plaintiff shall proceed in this manner with each named defendant, separately setting
forth each individual name and under that name, in numbered paragraphs, the
allegations specific to that particular defendant, the right(s) that he claims that
particular defendant violated, and the capacity in which the defendant is being sued.
The amended complaint must contain short and plain statements showing that
plaintiff is entitled to relief, the allegations must be simple, concise, and direct, and
the numbered paragraphs must each be limited to a single set of circumstances. If
plaintiff needs more space, he may attach additional sheets of paper to the amended
complaint and identify them as part of the "Caption" or "Statement of Claim”;

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however, as previously stated, plaintiff shall not attach any exhibits to the pleading.
Plaintiff shall sign the amended complaint.
Plaintiff is reminded that he is required to submit his amended complaint on a
Court-provided form, and it must comply with Rules 8 and 10 of the Federal Rules
of Civil Procedure. Plaintiff=s failure to make specific and actionable allegations
against any of defendant(s) will result in that individual=s dismissal from this case.1
If plaintiff fails to comply with the Court’s instructions, this action will be dismissed
without prejudice and without further notice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of
$2.70 within thirty (30) days of the date of this Order. Plaintiff is instructed to
make his remittance payable to AClerk, 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.

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The Court will review plaintiff=s amended complaint pursuant to 28 U.S.C. '
1915. A claim and/or defendant must survive ' 1915 review in order for plaintiff to
proceed in this lawsuit.
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IT IS FURTHER ORDERED that, on or before December 3, 2015,
plaintiff shall file an amended complaint on a Court-provided form, in accordance
with the instructions set forth above.
IT IS FURTHER ORDERED that the Clerk shall mail plaintiff a copy of
the Court's form "Motion to Proceed in Forma Pauperis - Prisoner Cases" and a
form prisoner complaint for filing a civil rights action.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this
Order, the Court will dismiss this action without prejudice and without further
notice.
Dated this 3rd day of November, 2015.

_________________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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