Bell v. Bowersox
MEMORANDUM AND ORDER:IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis Doc. 4 is GRANTED. IT IS FURTHER ORDERED that plaintiffs motion for leave to file an amended complaint Doc. 3 is GRANTED. IT IS FURTHER ORDERED that pla intiffs motion requesting service of process Doc. 5 is DENIED as moot. IT IS FURTHER ORDERED that plaintiffs motion for class certification Doc. 6 is DENIED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.70 w ithin 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) th at the remittance is for an original proceeding. IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to defendant Charles Scott. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant Scott shall reply to plaintiffs claims within the t ime provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to the remaining defendants. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. Signed by Honorable John A. Ross on 5/9/2012. (RAK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ROBERT BELL, JR.,
No. 4:12CV559 JAR
MEMORANDUM AND ORDER
Plaintiff, a prisoner, brought this action under 42 U.S.C. § 1983 alleging that
he was sanctioned for possessing typewriter ribbons. Plaintiff has incurred three
strikes under 28 U.S.C. § 1915(g), and the Court ordered plaintiff to pay the full
amount of the filing fee because there were no allegations suggesting that he was in
serious danger of imminent physical injury. Plaintiff has since filed an amended
complaint, in which he alleges that he has large blood clots in his legs that are
threatening his health. The Court finds that these allegations are sufficiently serious
to warrant granting plaintiff in forma pauperis status. Accordingly, the Court will
permit this action to go forward, and the Court will review the amended complaint
under 28 U.S.C. § 1915(e).
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 or her 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 six-month 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, until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account
statement for the six-month period immediately preceding the submission of his
complaint. A review of plaintiff’s account indicates an average monthly deposit of
$8.50, and an average monthly balance of $0.04. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $1.70, which is 20 percent of plaintiff’s average monthly deposit.
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 “lacks an arguable basis in either law or fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 504 U.S. 25,
31 (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 “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).
The Amended Complaint
Plaintiff’s amended complaint is brought pursuant to § 1983. Named as
defendants are George Lombardi (Director, Missouri Department of Corrections),
Michael Bowersox (Warden, South Central Correctional Center (“SCCC”)), Roger
Terry (Deputy Warden, SCCC), Unknown Lee (Correctional Officer, SCCC), Keneth
Leeder (C.C.M., SCCC), Walter Foster, Jr. (Correctional Officer, SCCC), J. Allen
(same), Dustin Donahs (same), M. Abbott (same), Mary Ann Phillippi (C.C.A.,
SCCC), Michele Buckner (Assistant Warden, SCCC), Randy Link (Functional Unit
Manager, SCCC), Sondra Booker (Litigation Officer, SCCC), Charles Scott
(Physician, SCCC), Unknown Eyman (Psychiatrist, SCCC), Unknown Davis
(Psychotherapist, SCCC), Jane Doe, Unknown Welch (Correctional Officer, SCCC),
R. Bee (same), Unknown Price (same), and Brent Carter (same).
Plaintiff was transferred to SCCC on June 21, 2011. (For the purposes of this
Memorandum and Order, the Court accepts the non-conclusory allegations in the
complaint as true.) When plaintiff was initially examined by defendant Scott, Scott
told plaintiff he would put plaintiff in administrative segregation if plaintiff asked for
soap or lotion for his skin problem. Scott had been made aware that plaintiff was
suing a doctor at a different prison. Scott refused to continue any of plaintiff’s
previous prescriptions or lay-ins, including a lay-in for no prolonged standing. As a
result, plaintiff was made to stand in long lines, which aggravated his arthritis.
Plaintiff says defendant Allen gave him a false conduct violation because
plaintiff had asked to bypass the line to receive medications. Allen put plaintiff in
administrative segregation, and defendants Foster and Terry approved of the
assignment. Plaintiff alleges that Foster and Terry did so in retaliation for plaintiff
having previously filed a grievance against Terry.
Defendant Abbot gave plaintiff a conduct violation for possessing typewriter
ribbons, because they are contraband. Plaintiff says the law library requires inmates
to supply their own ribbons.
Defendant Leeder placed plaintiff in administrative segregation because of
issues with bed space.
Plaintiff complained to defendants Booker, Buckner,
Bowersox, Lombardi, and Terry about the placement, but defendants either did not
respond to plaintiff or they denied his grievances.
Plaintiff alleges that defendant Lee read his legal mail and stole a pen from him.
Lee took plaintiff’s dinner from him that night “to punish [plaintiff] for passing . . .”
Leeder ordered that plaintiff’s typewriter ribbons be destroyed because plaintiff
did not have a typewriter. Plaintiff says that his typewriter ribbons were taken away
because defendants wanted to cause him to miss court deadlines.
The events described above occurred in June 2011.
In March 2012 plaintiff was assigned to administrative segregation. Plaintiff
asked defendant Eyman to help him get out. Eyman told plaintiff she could not get
involved in his placement.
Plaintiff claims that on March 26, 2012 he suffered “two strokes associated with
[his] heart.” Plaintiff also says that “three golf ball size blood clogs [sic] appeared in
[his] right lower leg.” Plaintiff says one of the doctors recommended that plaintiff get
outside medical care but that defendant Scott refused to allow him to be treated.
Plaintiff alleges that the blood clots are very painful.
The Court believes that plaintiff’s allegations regarding his medical condition
are sufficiently serious to permit plaintiff to proceed in form pauperis. And the Court
finds that plaintiff’s claims against Scott survive review under 28 U.S.C. § 1915(e).
As a result, the Court will order the Clerk to issue process on Scott.
Rule 18(a) of the Federal Rules of Civil Procedure provides: “A 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.” As such, multiple claims
against a single party are valid.
The instant action, however, presents a case involving multiple claims against
multiple defendants. Federal Rule of Civil Procedure 20(a)(2) is controlling and
provides: “Persons . . . may be joined in one action as defendants if: (A) any 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 (B) any question of law or fact common to all defendants will arise
in the action.” Thus, “Claim A against Defendant 1 should not be joined with
unrelated Claim B against Defendant 2.” George v. Smith, 507 F.3d 605, 607 (7th
Moreover, the Court notes that in litigation involving prisoners,
“[u]nrelated claims against different defendants belong in different suits . . . [in part]
to ensure that prisoners pay the required filing fees–for the Prison Litigation Reform
Act limits to 3 the number of frivolous suits or appeals that any prisoner may file
without prepayment of the required fees.” Id.
Plaintiff’s claims against Scott are wholly unrelated to his claims against the
other defendants, and the allegations against the other defendants did not arise out of
the same transactions and occurrences as those involving Scott. As a result, the Court
will dismiss the remaining defendants from this action without prejudice due to
Plaintiff has filed a motion for class certification. Under Rule 23(a)(4), a class
representative must “fairly and adequately protect the interests of the class.”
Additionally, a litigant may bring his own claims to federal court without counsel, but
not the claims of others. See 28 U.S.C. § 1654; see also 7A Wright, Miller & Kane,
Federal Practice and Procedure: Civil 3d § 1769.1 (“class representatives cannot
appear pro se.”). As a result, the motion is denied.
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. 4] is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion for leave to file an
amended complaint [Doc. 3] is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion requesting service of
process [Doc. 5] is DENIED as moot.
IT IS FURTHER ORDERED that plaintiff’s motion for class certification
[Doc. 6] is DENIED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $1.70 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 if plaintiff fails to pay the initial partial
filing fee within thirty (30) days of the date of this Order, then this case will be
dismissed without prejudice.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to issue upon the complaint as to defendant Charles Scott.1
A waiver letter should be mailed to Corizon.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendant Scott shall reply to plaintiff’s claims within the time provided by the
applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint as to the remaining defendants.
IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner
An appropriate Order of Partial Dismissal shall accompany this Memorandum
Dated this 9th day of May, 2012.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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