McCracken v. Godert et al

Filing 14

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis (Docket No. 3 ) is GRANTED. IT IS FURTHER ORDERED that plaintiff's subsequently-filed duplicate motion for leave to procee d in forma pauperis (Docket No. 9 ) is DENIED as moot. IT IS FURTHER ORDERED that plaintiff's Motion for Preliminary Injunction and Motion for Temporary Restraining Order (Docket No. 7 ) is DENIED without prejudice. IT IS FURTHER ORDERED tha t plaintiff's Motion to Amend (Docket No. 13 ) is DENIED as moot. IT IS FURTHER ORDERED that plaintiff's motions to appoint counsel (Docket Nos. 5 and 10 ) are DENIED without prejudice.IT IS FURTHER ORDERED that plaintiff must pay an i nitial filing fee of $6.23 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 numbe r; (3) the case number; and (4) the statement that the remittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk is directed to mail to plaintiff a copy of the Court's prisoner civil rights complaint form. IT IS FURTHER O RDERED that plaintiff must file a second amended complaint within thirty (30) days from the date of this Order. Plaintiff's failure to timely comply with this Order will result in the dismissal of this case, without prejudice and without further notice. Signed by Magistrate Judge Patricia L. Cohen on 7/20/2018. (Order and Prisoner Civil Rights packet mailed to plaintiff this date.)(CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
SCOTTY MCCRACKEN,
Plaintiff,
v.
CHANTAY GODERT, et al.,
Defendants.

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No. 2:18-cv-35-PLC

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff Scotty McCracken (“plaintiff”)
for leave to commence this civil action without prepayment of the required filing fee. Having
reviewed the motion and the financial information submitted in support, the Court has
determined to grant the motion, and assess an initial partial filing fee of $6.23. See 28 U.S.C.
§ 1915(b)(1). In addition, for the reasons discussed below, the Court will direct plaintiff to file a
second amended complaint
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis
is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his
prison account to pay the entire fee, the Court must assess and, when funds exist, collect an
initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the
prisoner’s account, or (2) the average monthly balance in the prisoner’s account for the prior sixmonth period. 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. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these

monthly payments to the Clerk of Court each time the amount in the prisoner’s account exceeds
$10.00, until the filing fee is fully paid. Id.
In support of the instant motion, plaintiff submitted a certified inmate account statement
showing an average monthly deposit of $31.15, and an average monthly balance of $26.81. The
Court will therefore assess an initial partial filing fee of $6.23, which is twenty percent of
plaintiff’s average monthly deposit.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2)(B), the Court is required to dismiss a complaint filed in
forma pauperis if it 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 “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319,
328 (1989). 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). An action fails to state
a claim upon which relief can be granted if it does not plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,570 (2007).
To determine whether an action fails to state a claim upon which relief can be granted,
the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the
complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). These include “legal conclusions” and “[t]hreadbare recitals of the elements of a cause
of action [that are] supported by mere conclusory statements.” Id. at 678. Second, the Court
must determine whether the complaint states a plausible claim for relief. Id. at 679. This is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id.
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The plaintiff is required to plead facts that show more than the “mere possibility of
misconduct.” Iqbal, 556 U.S. at 679. The Court must review the factual allegations in the
complaint “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. When
faced with alternative explanations for the alleged misconduct, the Court may exercise its
judgment in determining whether plaintiff’s proffered conclusion is the most plausible or
whether it is more likely that no misconduct occurred. Id. at 680-82.
Pro se complaints are to be liberally construed, Estelle v. Gamble, 429 U.S. 97, 106
(1976), but they still must allege facts which, if true, state a claim for relief as a matter of law.
Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980).

The Court must weigh all factual

allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v.
Hernandez, 504 U.S. 25, 32 (1992). Federal courts are not required to “assume facts that are not
alleged, just because an additional factual allegation would have formed a stronger complaint.”
Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004).
Background
Plaintiff is an inmate at the Northeast Correctional Center. On May 17, 2018, he initiated
this civil action by filing a document titled “Notice of Petition for Writ of Prohibition.” (Docket
No. 1). Plaintiff listed “Northeast Correctional Center Native American Council of Elders” and
the names of numerous individuals as plaintiffs, and he listed two Missouri Department of
Corrections officials as defendants. Essentially, plaintiff claimed the officials were violating the
rights of Native American inmates by banning their use of tobacco in religious ceremonies, and
he asked this Court to issue a “writ of prohibition” against them.
Subsequently, plaintiff filed numerous documents. These included an “Order to Show
Cause for a Preliminary Injunction and a Temporary Restraining Order” seeking injunctive relief

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against numerous individuals, most of whom were not named as defendants in the original filing.
(Docket No. 7). He then filed an amended complaint pursuant to 42 U.S.C. § 1983, followed by
a motion to file an amended complaint, in which he asks the Court to make numerous
amendments. He also appeared to quarrel with the manner in which this Court docketed his
original filing. Plaintiff also filed a declaration in which he described his Native American
heritage and his long history of study and practice of his religion, and the manner in which the
practice of that religion is currently being restricted.

That description included plaintiff’s

statement that the practice of his religion requires the use of Sacred Longleaf Tobacco, Native
American Pipes, and other items, the use of which has been banned pursuant to a Missouri
Department of Corrections policy prohibiting tobacco.
Discussion
In all of his filings, plaintiff can be understood to allege that his right to freely exercise
his religion is being restricted because he is not being allowed to use ceremonial pipes, tobacco,
and other items. The free exercise clause of the first amendment prevents prison officials from
substantially burdening a prisoner’s sincerely held religious belief. Prisoners are also protected
by the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc et
seq. The RLUIPA provides: “No government shall impose a substantial burden on the religious
exercise” of an institutionalized person unless the government can demonstrate that the burden
“is the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. §
2000cc-1(a).
To establish violations of the RLUIPA and the first amendment, plaintiff must show that
the defendant’s policies and actions substantially burden his ability to practice his religion.
Gladson v. Iowa Dep’t of Corrections, 551 F.3d 825, 831, 833 (8th Cir. 2009). A substantial

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burden is one that significantly inhibits or constrains religious conduct, meaningfully curtails an
inmate’s ability to express adherence to his faith, or denies an inmate reasonable opportunities to
engage in fundamental religious activities. Van Wyhe v. Reisch, 581 F.3d 639, 656 (8th Cir.
2009) (citation and quotation omitted). The RLUIPA allows official-capacity claims against
prison officials, but it does not authorize monetary damages based on those claims. See Van
Wyhe v. Reisch, 581 F.3d 639, 655 (8th Cir. 2009). In Native Am. Council of Tribes v. Weber,
750 F.3d 742 (8th Cir. 2014), the Eighth Circuit recognized that prison inmates’ use of tobacco
during Native American ceremonies is a religious exercise, and held that the defendants’
complete ban on tobacco use substantially burdened the exercise of the inmates’ religious beliefs.
In the case at bar, numerous defects render this case subject to dismissal. First, it appears
that plaintiff attempts to bring this action on behalf of himself and several of his fellow inmates.
The additional parties are identified by their individual names, and also by reference to the name
of an entity of which they are all presumably members. However, plaintiff lacks standing to
bring claims on behalf of others, and he does not allege, nor is it apparent, that he is a licensed
attorney. Only a licensed attorney may represent another party in federal court. See 28 U.S.C. §
1915(e)(2)(B); Lewis v. Lenc–Smith Mfg. Co., 784 F.2d 829, 830 (7th Cir. 1986) (a person who
is not licensed to practice law may not represent another individual in federal court). To the
extent plaintiff and other inmates are attempting to join together as plaintiffs, they are advised
that this is impermissible. Multiple prisoners may not join together and proceed in forma
pauperis in a single lawsuit. See, e.g., Georgeoff v. Barnes, No. 2:09-cv-14 ERW, 2009 WL
1405497 (E.D. Mo. 2009).

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Plaintiff also repeatedly states he intends to seek a writ of prohibition. However, a writ
of prohibition is inapplicable here.1 Plaintiff also filed an amended complaint pursuant to 42
U.S.C. § 1983, but again listed numerous individuals as plaintiffs and purported to allege claims
on their behalf. As explained above, this is impermissible. He also named twelve defendants
without explaining what each of them did to violate his rights. Finally, after filing the amended
complaint, plaintiff filed a motion to file an amended complaint, seeking to amend via
supplementation or interlineation. However, plaintiff may not amend his complaint in this
manner, and neither this Court nor the defendants should bear the burden of poring through
multiple filings in an attempt to discern his claims.
As noted above, plaintiff has expressed his intent to file an amended complaint. Given
the deficiencies explained above and given plaintiff’s expressed intent to amend, the Court grants
plaintiff the opportunity to file a second amended complaint within thirty days. However, the
Court denies as moot plaintiff’s motion to amend in which he seeks to amend via
supplementation or to correct information on the docket sheet, as plaintiff will be able to
accomplish his goals by filing a second amended complaint.
Plaintiff is required to submit his second amended complaint on a court-provided form,
and it must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Rule 8(a)
requires that a complaint contain a “short and plain” statement of the claim showing that the
pleader is entitled to relief. Rule 10(b) requires a party to state his claims in separately numbered
paragraphs, each limited as far as practicable to a single set of circumstances. All of plaintiff’s
claims must be included in one, centralized complaint form.

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Typically, a writ of prohibition is a writ from a superior court to a subordinate court or tribunal,
directing it to stop doing something that is prohibited by law.

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Plaintiff must clearly identify each defendant against whom he is alleging a claim, and he
must state, for each defendant he names, the specific facts about what that defendant did to
violate his rights. Plaintiff should also specify whether he is suing each defendant in his or her
individual capacity, official capacity, or both. If plaintiff names more than one defendant, he
may only allege claims that are related to each other, and that involve common questions of law
or fact. See Fed. R. Civ. P. 20(a)(2).
Plaintiff shall have thirty (30) days from the date of this Memorandum and Order to file a
second amended complaint.

The second amended complaint will completely replace the

original, and will be subject to review pursuant to 28 U.S.C. § 1915(e). Plaintiff is cautioned that
his failure to timely comply with this Order will result in the dismissal of this case, without
prejudice and without further notice.
Motion for Injunctive Relief
Plaintiff has also filed a “Motion for Preliminary Injunction and Motion for Temporary
Restraining Order” (Docket No. 7), which is most properly characterized as a request for a
preliminary injunction to prevent defendants from burdening his constitutional rights.

The

purpose of a preliminary injunction is to protect the movant from harms alleged in the complaint
while litigation is pending. Thus, the movant must establish a relationship between the injury
claimed in the motion and the conduct asserted in the complaint. Devose v. Herrington, 42 F.3d
470, 471 (8th Cir. 1994). To determine whether preliminary injunctive relief is warranted, the
Court must balance the threat of irreparable harm to movant, the potential harm to the
nonmoving party should an injunction issue, the likelihood of success on the merits, and the
public interest. Dataphase Sys. v. CL Sys., 640 F.2d 109, 113-14 (8th Cir. 1981) (en banc). A
preliminary injunction is an “extraordinary remedy,” and the “party seeking injunctive relief

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bears the burden of proving all the Dataphase factors.” Watkins, Inc. v. Lewis, 346 F.3d 841,
844 (8th Cir. 2003) (citations omitted). Here, plaintiff has yet to file a viable complaint, and the
motion is therefore premature. In addition, plaintiff has not met his burden of establishing all of
the Dataphase factors sufficient to demonstrate entitlement to injunctive relief at this stage of the
case. The Court therefore denies the motion, without prejudice.
Motions to Appoint Counsel
Plaintiff has also repeatedly moved for the appointment of counsel. (Docket Nos. 5 and
10). The motions are denied at this time, without prejudice. There is no constitutional or
statutory right to appointed counsel in civil cases. Nelson v. Redfield Lithograph Printing, 728
F.2d 1003, 1004 (8th Cir. 1984). In determining whether to appoint counsel, the Court considers
several factors, including (1) whether the plaintiff has presented non-frivolous allegations
supporting his or her prayer for relief; (2) whether the plaintiff will substantially benefit from the
appointment of counsel; (3) whether there is a need to further investigate and present the facts
related to the plaintiff’s allegations; and (4) whether the factual and legal issues presented by the
action are complex. See Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986); Nelson,
728 F.2d at 1005. Here, it does not appear that the factual or legal issues in this case are
complex. In addition, the Court is providing plaintiff the opportunity to file a second amended
complaint, and has clearly instructed him about the manner in which to do so. If appropriate at a
later stage of this litigation, plaintiff may file a motion to appoint counsel that addresses the
foregoing factors.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
(Docket No. 3) is GRANTED.

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IT IS FURTHER ORDERED that plaintiff’s subsequently-filed duplicate motion for
leave to proceed in forma pauperis (Docket No. 9) is DENIED as moot.
IT IS FURTHER ORDERED that plaintiff’s Motion for Preliminary Injunction and
Motion for Temporary Restraining Order (Docket No. 7) is DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s Motion to Amend (Docket No. 13) is
DENIED as moot.
IT IS FURTHER ORDERED that plaintiff’s motions to appoint counsel (Docket Nos. 5
and 10) are DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $6.23 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) the statement that the remittance is for an
original proceeding.
IT IS FURTHER ORDERED that the Clerk is directed to mail to plaintiff a copy of the
Court’s prisoner civil rights complaint form.
IT IS FURTHER ORDERED that plaintiff must file a second amended complaint
within thirty (30) days from the date of this Order.
Plaintiff’s failure to timely comply with this Order will result in the dismissal of this
case, without prejudice and without further notice.

PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 20th day of July, 2018

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