Houston v. Shoemaker 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 FUR THER ORDERED that plaintiff shall pay an initial partial filing fee of $15.58 within thirty (30) days from 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 remitta nce is for an original proceeding. IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint, in accordance with the instructions set forth in this Memorandum and Order, no later than thirty (30) days from the date of this Memorandum and Order. IT IS FURTHER ORDERED that the Court shall mail to plaintiff a blank form for the filing of a prisoner civil rights complaint. Plaintiff may request additional forms from the Clerk, as needed. 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. ( Response to Court due by 8/5/2016.)Signed by District Judge Catherine D. Perry on July 6, 2016. (blank Prisoner Civil Right Complaint sent to Plaintiff along with a copy of the Memorandum and Order.) (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
JOHN K. HOUSTON,
Plaintiff,
v.
KEVIN SHOEMAKER, et al.,
Defendants.

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No. 2:16 CV 36 CDP

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 [Doc. 2]. After reviewing
plaintiff’s financial information, the Court will grant the motion and assess
plaintiff an initial partial filing fee of $15.58, which is twenty percent of his
six-month average deposits. Additionally, 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 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 Alacks an arguable basis in
either law or fact.@ Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v.

Hernandez, 112 S. Ct. 1728, 1733 (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 Aenough facts to state a claim to relief that is
plausible on its face.@ Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974
(2007).
The Complaint
Plaintiff, an inmate at the Booneville Treatment Center, brings this action
under 42 U.S.C. § 1983 action against Kevin Shoemaker (Sheriff), Allan Wyatt,
Jossua Messner, Drew Belt, Jesse Palermo (“Jailer”), and Krista Bruno. Plaintiff
alleges that, on September 4, 2015, he was denied medical treatment and medicine,
causing him “to fall down the stairs within the facility,” which resulted to injuries
to his neck and back. He alleges that defendant Shoemaker failed to provide
handicap railings.

In addition, plaintiff alleges that on September 25, 2015,

“Macon County jailers” caused him to “share the same diabetic needle with other
inmates of other diseases.”

He is suing defendants in both their individual and

official capacities.

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Discussion
At the outset, the Court notes that plaintiff has failed to assert specific
allegations and claims against all of the named defendants, and he has failed to
identify all but two of the defendants as state actors. Moreover, plaintiff seems to
be attempting to bring multiple claims against multiple parties, and the claims do
not arise out of the same transaction or occurrence. This is not allowed. 1
Because plaintiff is proceeding pro se and in forma pauperis, the Court will
give him an opportunity to file an amended complaint in this action. In so doing,
plaintiff should select the transaction or occurrence he wishes to pursue, in
accordance with Rules 18 and 20 of the Federal Rules of Civil Procedure, and file
an amended complaint, limiting his facts and allegations to the defendant(s)
involved in said occurrence.

Plaintiff should only include in his amended

complaint those claims that arise out of the same transaction or occurrence, or
simply put, claims that have some relation to each other. See Fed.R.Civ.P. 20(a)(2).
Rule 18(a) of the Federal Rules of Civil Procedure states, AA party
asserting a claim to relief as an original claim, counterclaim, cross-claim, or
third-party claim, may join, either as independent or as alternate claims, as many
claims, legal, equitable, or maritime, as the party has against an opposing party.@
Rule 20(a)(2) of the Federal Rules of Civil Procedure allows for joinder of
defendants if Aany right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or
series of transactions or occurrences; and . . . any question of law or fact common
to all defendants will arise in the action.@
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Alternatively, plaintiff may choose to select one defendant and set forth as many
claims as he has against that single individual.

See Fed.R.Civ.P. 18(a).

Moreover, plaintiff is advised that 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, supplements, and all previously-filed
pleadings and exhibits, 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 supplements and will be the only pleading
this Court reviews. Id. If plaintiff wishes to sue defendants in a particular
capacity, plaintiff must specifically say so in 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. Specifically, in the "Caption" of the form complaint, plaintiff
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shall set forth the name of each defendant he wishes to sue; and in the "Statement
of Claim," plaintiff shall start by typing or legibly writing the first defendant=s
name and title, and under the name and title, he shall set forth in separate
numbered paragraphs the allegations supporting his claim(s) as to that particular
defendant, as well as the right(s) that he claims that particular defendant violated.
If plaintiff is suing more than one defendant, he shall proceed in this manner
with each of the named defendants, separately setting forth each individual
name and under that name, in numbered paragraphs, the allegations specific
to that particular defendant and the right(s) that he claims that particular
defendant violated. It is improper for plaintiff to name multiple defendants and
generally allege that “defendants” violated his constitutional rights. Rather, he
must set forth his claims, separately and in numbered paragraphs, as to each named
defendant, the specific allegations relative to that particular defendant, as well as
the right(s) allegedly violated.

Plaintiff is instructed not to attach any exhibits

to the amended complaint.
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
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amended complaint and identify them as part of the "Caption" or "Statement of
Claim." Because the Court is allowing plaintiff to amend his complaint, it will
take no action as to the named defendants at this time.
If plaintiff wishes to pursue additional claims against additional defendants,
and the claims to not arise from the same transaction or occurrence he has chosen
to advance in his amended complaint, he must file each such claim(s) on a separate
complaint form and either pay the entire filing fee or file a motion for leave to
proceed in forma pauperis.
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 partial filing
fee of $15.58 within thirty (30) days from 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 shall submit an amended
complaint, in accordance with the instructions set forth in this Memorandum and
Order, no later than thirty (30) days from the date of this Memorandum and Order.
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IT IS FURTHER ORDERED that the Court shall mail to plaintiff a blank
form for the filing of a prisoner civil rights complaint. Plaintiff may request
additional forms from the Clerk, as needed.
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 6th day of July, 2016.

UNITED STATES DISTRICT JUDGE

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