Grace v. Brennen et al
MEMORANDUM AND ORDER : 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 $1.50 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 orig inal 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 submit an amended complaint within thirty (30) days from the date of this Order. IT IS FURTHER ORDERED that if plaintiff fails to timely comply with this Order, the Court will dismiss this action without further proceedings.. Signed by Magistrate Judge Shirley Padmore Mensah on 10/25/16. (LGK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DR. BONNE BRENNEN, et al.,
No. 2:16CV64 SPM
MEMORANDUM AND ORDER
Plaintiff, an inmate at the Northeast Correctional Center, seeks leave to proceed in forma
pauperis in this civil action filed under 42 U.S.C. § 1983. Having reviewed plaintiff’s financial
information, the Court assesses a partial initial filing fee of $1.50, which is twenty percent of his
average monthly deposit. See 28 U.S.C. § 1915(b). Additionally, the Court will require plaintiff
to submit an amended complaint.
Standard of Review
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.
Determining whether a complaint states a plausible claim for relief [is] a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense. Id. at 679.
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).
Plaintiff alleges that he suffers from AIDS and has become underweight, and that he suffers
from asthma, severe pain, heel spurs, and bunions. He alleges that defendants, employees of
Corizon Medical Services, have exhibited deliberate indifference to his serious medical needs by
denying him medication, adequate nutrition, and proper footwear. The complaint does not specify
the remedy plaintiff seeks.
Plaintiff brings this action against Dr. Bonne Brennen in her individual and official
capacity, and against Tamara Anderson and Maureen Banocy in their official capacities. See
Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995) (where a complaint is
silent about defendant's capacity, the Court interprets it as alleging only official-capacity claims);
Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989). To state a claim against a Corizon employee
in his or her official capacity, a plaintiff must allege that a policy or custom of the employer is
responsible for the alleged constitutional violation. See Sanders v. Sears, Roebuck & Co., 984 F.2d
972, 975–76 (8th Cir.1993) (citing Monell v. Dep't of Social Services, 436 U.S. 658, 690–91, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978)). The instant complaint contains no allegations that a policy
or custom of Corizon was responsible for the alleged violation of plaintiff's constitutional rights.
As a result, it is legally frivolous and fails to state a claim upon which relief can be granted as to
all defendants in their official capacities.
In his complaint, plaintiff names as a defendant a nurse named Pamela whose last name is
unknown. However, the complaint fails to allege that this nurse was directly responsible for the
alleged deprivation of plaintiff’s rights. “Liability 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, 556 U.S. 662, 676 (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.”). Because
there are no allegations that nurse Pamela, through her own actions, was directly involved in the
deprivation of plaintiff’s rights, the complaint fails to state a claim against her.
Because plaintiff is proceeding pro se, the Court will allow him to file an amended
complaint. 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. Plaintiff must allege how each and
every defendant is directly responsible for the alleged harm. In order to sue defendants in
their individual capacities, plaintiff must specifically say so in the complaint. If plaintiff fails
to sue any defendant in his or her individual capacity, plaintiff’s cause of action against that
defendant may be subject to dismissal.
The amended complaint should not be overly wordy or repetitive. It need only contain a
short and plain statement of the facts that plaintiff believes entitle him to relief. Fed. R. Civ. P. 8.
In other words, the amended complaint should be limited to the “who, what, when, and where” of
the facts. Plaintiff must also specify, in the amended complaint, a demand for the relief he seeks.
Id. Plaintiff must state his claims in numbered paragraphs. Fed. R. Civ. P. 10. Finally, plaintiff
must use the Court-provided form, not a handwritten reproduction thereof. E.D.Mo. Local Rule
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 $1.50
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 is directed to send plaintiff a prisoner civil
rights complaint form.
IT IS FURTHER ORDERED that plaintiff must submit an amended complaint within
thirty (30) days from the date of this Order.
IT IS FURTHER ORDERED that if plaintiff fails to timely comply with this Order, the
Court will dismiss this action without further proceedings.
Dated this 25th day of October, 2016.
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
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