Sandefur v. Missouri Department of Corrections et al

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2 , is GRANTED. IT IS FURTHER ORDERED that Plaintiff must pay an initial partial filing fee of $7.59 within thirty (30) days of the date of this order. Plaintiff shall make his remittance payable to "Clerk, United States District Court" and 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 Plaintiff's Motion for Leave to File an Amended Complaint, Doc. 5 , is GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court shall mail to Plaintiff a blank "Prisoner Civil Rights Complaint" form. Plaintiff may request additional forms as needed. IT IS FURTHER ORDERED that within thirty (30) days of the date of this Order, Plaintiff shall file an amended complaint on the Court-provided f orm per the Court's instructions. IT IS FURTHER ORDERED that Plaintiff's Motion for Appointment of Counsel, Doc. 4 , is DENIED. IT IS FINALLY ORDERED that if Plaintiff does not timely comply with this Memorandum and Order, the Court will dismiss this action without prejudice and without further notice. Signed by District Judge Sarah E. Pitlyk on 6/5/2024. (KEK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
DARREN RAY SANDEFUR,
Plaintiff,
v.
MISSOURI DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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No. 2:23-cv-00063-SEP

MEMORANDUM AND ORDER
Before the Court are Plaintiff’s Application to Proceed in District Court Without Prepaying
Fees or Costs, Doc. [2]; Motion for Appointment of Counsel, Doc. [4]; Motion for Leave to File an
Amended Complaint, Doc. [5]. For the reasons set forth below, the Application to Proceed in
District Court Without Prepaying Fees or Costs and Motion for Leave to File an Amended
Complaint are granted, and the Motion for Appointment of Counsel is denied.
DISCUSSION
I.

Application to Proceed in District Court Without Prepaying Fees or Costs
Under 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis must pay

the full filing fee. If the prisoner has insufficient funds in his or her prison account to pay the entire
fee, the Court will assess an initial partial filing fee equal to the greater of either: (1) 20% of the
average monthly deposits in the prisoner’s account for the six months immediately preceding the
filing of the lawsuit, or (2) 20% of the average monthly balance in the prisoner’s account over the
same six-month period. 28 U.S.C. § 1915(b)(1). After payment of the initial partial filing fee, the
prisoner must make monthly payments of 20% of the preceding month’s income credited to the
prisoner’s account. Id. § 1915(b)(2). The agency having custody of the prisoner will forward the
monthly payments to the Clerk of Court each time the amount in the prisoner’s account exceeds
$10, until the fee is paid in full. Id.
Plaintiff has submitted a certified account statement in support of his application. Doc. [3].
The account statement reflects average deposits of $37.95 for the six-month period preceding his
complaint. Thus, the Court will assess an initial partial filing fee of $7.59, representing 20% of
Plaintiff’s average deposits over that time.

II.

Motion for Leave to File an Amended Complaint
Plaintiff also seeks leave to file an amended complaint. Doc. [5]. Federal Rules of Civil

Procedure 15 dictates that courts should freely grant leave when justice so requires. “A court
abuses its discretion when it denies a motion to amend a complaint unless there exists undue delay,
bad faith, repeated failure to cure deficiencies by amendments previously allowed undue prejudice
to the non-moving party, or futility of the amendment.” Popoalii v. Corr. Med. Servs., 512 F.3d
488, 497 (8th Cir. 2008) (citing Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998)).
There is no reason to believe Plaintiff is acting in bad faith or that an amended complaint would
cause undue delay. Indeed, Plaintiff has not yet served the Defendants in this action. Plaintiff’s
Motion for Leave to File an Amended Complaint is therefore granted.
III.

Instructions for Filing Amended Complaint
Plaintiff shall amend the Complaint using the Court’s “Prisoner Civil Rights Complaint”

form. In the “Caption” section of the form, Plaintiff must state the first and last name of each
defendant, if known. See Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the
parties.”). If there is not enough room in the caption, Plaintiff may include additional sheets of
paper. Plaintiff must clearly list all defendants and state whether he intends to sue each in his
individual capacity, official capacity, or both. Plaintiff should avoid naming any defendant that is
not directly related to his claims. Plaintiff should put his case number in the appropriate location on
the upper right-hand section of the first page.
In the “Statement of Claim” section, Plaintiff should begin by writing a defendant’s name.
Then, in separate numbered paragraphs under that name, Plaintiff should: (1) set forth a short and
plain statement of the factual allegations supporting his claim against that defendant; and (2) state
what constitutional or federal statutory right that defendant violated. Each statement must be
simple, concise, and direct. See Fed. R. Civ. P. 8(a). If Plaintiff is suing more than one defendant,
he should proceed in the same manner with each defendant. No introductory or conclusory
paragraphs are necessary.
If Plaintiff is suing multiple defendants, he should only include claims that arise out of the
same transaction or occurrence. Put another way, all of Plaintiff’s claims should relate to each other
in some way. See Fed. R. Civ. P. 20(a)(2). If Plaintiff is suing a single defendant, he may set forth
as many claims as he has against that individual. See Fed. R. Civ. P. 18(a).
Plaintiff’s failure to make specific factual allegations against any defendant will result in the
dismissal of that defendant. If Plaintiff is suing a defendant in his individual capacity, he must
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allege facts demonstrating that defendant’s personal responsibility for the alleged harm. See
Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (§ 1983 liability “requires a causal link
to, and direct responsibility for, the deprivation of rights”). If Plaintiff is suing multiple defendants,
he must establish the responsibility of each defendant for the alleged harm. That is, for each
defendant, Plaintiff must allege facts showing how that defendant’s acts or omissions violated his
constitutional rights. See Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir.
2014). A conclusory allegation about a defendant’s supervisory role will not suffice. See Keeper v.
King, 130 F.3d 1309, 1314 (8th Cir. 1997) (“[A] general responsibility for supervising the
operations of a prison is insufficient to establish the personal involvement required to support
liability.”) (quoting Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir.1995)).
Plaintiff must fill out the complaint form completely, including the “Injuries” section. There
is no constitutional violation where an inmate cannot show he suffered an injury or adverse health
consequence. See Seltzer-Bey v. Delo, 66 F.3d 961, 964 (8th Cir. 1995). “Claims under the Eighth
Amendment require a compensable injury to be greater than de minimis.” Irving v. Dormire, 519
F.3d 441, 448 (8th Cir. 2008). “While a serious injury is not necessary, some actual injury is
required in order to state an Eighth Amendment violation.” White v. Holmes, 21 F.3d 277, 281 (8th
Cir. 1994).
An amended complaint completely replaces the original complaint. Any claims not realleged in the amended complaint will be deemed abandoned. See In re Wireless Tel. Fed. Cost
Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005). After receiving the amended complaint,
the Court will review it under 28 U.S.C. § 1915. If Plaintiff does not file an amended complaint on
the Court-provided form within thirty (30) days per the instructions set forth above, the Court will
dismiss this action without prejudice and without further notice to Plaintiff.
IV.

Motion for Appointment of Counsel
Plaintiff has also filed a Motion for Appointment of Counsel. Doc. [4]. A litigant in a civil

case does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721 F.3d
940, 942 (8th Cir. 2013); Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (“A pro se litigant
has no statutory or constitutional right to have counsel appointed in a civil case.”). A district court
may appoint counsel in a civil case if the court is “convinced that an indigent plaintiff has stated a
non-frivolous claim . . . and where the nature of the litigation is such that plaintiff as well as the
court will benefit from the assistance of counsel.” Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir.
2018). When determining whether to appoint counsel for an indigent litigant, a court considers such
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factors as the complexity of the case, the ability of the pro se litigant to investigate the facts and to
present his or her claim, and the existence of conflicting testimony. Phillips v. Jasper Cnty. Jail,
437 F.3d 791, 794 (8th Cir. 2006).
Plaintiff has yet to file a complaint that survives initial review, and so far he has been able to
adequately present his claims to the Court. Neither the factual nor the legal issues in this case
appear to be complex. The Court may entertain future motions for appointment of counsel as the
case progresses.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed in District Court
Without Prepaying Fees or Costs, Doc. [2], is GRANTED.
IT IS FURTHER ORDERED that Plaintiff must pay an initial partial filing fee of $7.59
within thirty (30) days of the date of this order. Plaintiff shall make his remittance payable to
“Clerk, United States District Court” and 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 Plaintiff's Motion for Leave to File an Amended
Complaint, Doc. [5], is GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court shall mail to Plaintiff a blank
“Prisoner Civil Rights Complaint” form. Plaintiff may request additional forms as needed.
IT IS FURTHER ORDERED that within thirty (30) days of the date of this Order,
Plaintiff shall file an amended complaint on the Court-provided form per the Court’s instructions.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel, Doc.
[4], is DENIED.
IT IS FINALLY ORDERED that if Plaintiff does not timely comply with this
Memorandum and Order, the Court will dismiss this action without prejudice and without further
notice.
Dated this 5th day of June, 2024.

SARAH E. PITLYK
UNITED STATES DISTRICT JUDGE

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