Fulson v. Anderson et al

Filing 5

MEMORANDUM AND ORDER. (See Full 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 $41 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 t he 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 complete the form and return it to the Court within tw enty-one (21) days from the date of this Order. IT IS FURTHER ORDERED that if plaintiff does not comply with this Order, the Court may dismiss this action without further proceedings. Signed by District Judge Catherine D. Perry on 11/15/2016. (Order and forms sent to plaintiff on 11/16/2016.)(CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
ANDRE L. FULSON,
Plaintiff,
v.
TAMARA ANDERSON, et al.,
Defendants.

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No. 2:16-CV-78 CDP

MEMORANDUM AND ORDER
Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42
U.S.C. § 1983 and the Americans with Disabilities Act. Having reviewed plaintiff’s financial
information, the Court assesses a partial initial filing fee of $41, which is twenty percent of his
average monthly deposit. See 28 U.S.C. § 1915(b). Additionally, the Court will order 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, 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.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
Discussion
Plaintiff brings this action against several prison and medical officials at the Northeastern
Correctional Center. He maintains that defendants interfered with his medical treatment and
retaliated against him.
The Court cannot properly review the complaint because of the manner in which it was
drafted.

Plaintiff lumps several defendants together and says they “jointly and severally”

violated his rights. In doing so, he fails to show that any of the particular defendants directly
contributed to the alleged violations. There are exceptions, but much of the complaint fails to
show which defendant violated what right. To state a plausible claim for relief, plaintiff must
show how each and every defendant was personally involved in the violation of his statutory and
constitutional rights. 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.”); 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.”); George v. Smith, 507 F. 3d 605, 609 (7th Cir. 2007)
(“Only persons who cause or participate in the [constitutional] violations are responsible. Ruling
against a prisoner on an administrative complaint does not cause or contribute to the violation.”).

2

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 defendants in their individual capacities, this action may be subject
to dismissal.
Accordingly,
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 $41
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.1
IT IS FURTHER ORDERED that the Clerk is directed to send plaintiff a prisoner civil
rights complaint form.

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Prisoners must pay the full amount of the $350 filing fee. 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. The agency having custody of the prisoner
will deduct the payments and forward them to the Court each time the amount in the account
exceeds $10. 28 U.S.C. § 1915(b)(2).
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IT IS FURTHER ORDERED that plaintiff must complete the form and return it to the
Court within twenty-one (21) days from the date of this Order.
IT IS FURTHER ORDERED that if plaintiff does not comply with this Order, the
Court may dismiss this action without further proceedings.
Dated this 15th day of November, 2016.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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