Hemingway v. Immekus et al

Filing 10

MEMORANDUM AND ORDER: HEREBY ORDERED that plaintiff's motions to proceed in forma pauperis [Doc. # 2 and # 8 ] are GRANTED. FURTHER ORDERED that plaintiffs motion for appointment of counsel [Doc. # 4 ] is DENIED without prejudice. FURTHER ORDE RED that plaintiff shall submit an amended complaint, in accordance with the instructions set forth in this Memorandum and Order, no later than thirty (30) days from the date of this Memorandum and Order. FURTHER ORDERED that the Court shall mail to plaintiff five blank form complaints for the filing of a civil rights complaint, as well as five blank form motions for leave to proceed in forma pauperis. Plaintiff may request additional forms from the Clerk, as needed. Signed by District Judge Jean C. Hamilton on 12/14/12. ( Response to Court due by 1/14/2013.)(forms mailed to plaintiff). Signed by District Judge Jean C. Hamilton on 12/14/12. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LAMON HEMINGWAY,
Plaintiff,
v.
UNKNOWN IMMEKUS, et al.,
Defendants.

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No. 4:12CV953 TIA

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff, a former inmate, for
leave to commence this action without payment of the required filing fee. For the
reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay
the filing fee and will grant plaintiff’s motion to proceed in forma pauperis. See 28
U.S.C. § 1915(b)(1). Additionally, the Court will order plaintiff to file an amended
complaint
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). 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).
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, 129 S. Ct. 1937, 1950-51 (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 1949. Second, the Court must determine whether the
complaint states a plausible claim for relief. Id. at 1950-51. This is a “context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 1950. The plaintiff is required to plead facts that show more than the
“mere possibility of misconduct.” Id. The Court must review the factual allegations
in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id.
at 1951. When faced with alternative explanations for the alleged misconduct, the
Court may exercise its judgment in determining whether plaintiff’s conclusion is the
most plausible or whether it is more likely that no misconduct occurred. Id. at 1950,
51-52.
The Complaint

Plaintiff, a former inmate in the Missouri Correctional System, brings this action
pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Plaintiff has named
thirty-four (34) defendants in this action, and all appear to be current or former
employees of the Missouri Department of Corrections (“MDOC”).
Plaintiff’s complaint lists a myriad of allegations against defendants, which
purportedly occurred at three different MDOC facilities: Missouri Eastern Correctional
Center (“MECC”); Potosi Correctional Center (“PCC”); and Farmington Correctional
Center. The majority of his claims relate to what he believes to be unconstitutional
conditions of confinement in violation of the Eighth Amendment. Plaintiff also
complains about dietary issues relative to his incarceration in the Missouri Department
of Corrections, and he believes that defendants have been deliberately indifferent to his
serious medical needs.

Plaintiff asserts that he was fed pork by defendants

when he was not supposed to be given pork. (Plaintiff does not state why he preferred
not be given pork - if it was in relation to a religious preference or allergy or if he
simply did not like the taste.) Plaintiff additionally claims that during various times and
at various facilities in the Missouri Department of Corrections he was given peanut
butter even though he was allergic to peanut butter. Plaintiff claims that he was given
peanut butter on so many different occasions and that correctional officers failed to
offer him a substitute meal at so many different times that he lost more than thirty

pounds as a result of defendants’ failure to adhere to his dietary restrictions. He claims
that the correctional officers said he was on a “hunger strike” but in reality they were
refusing to provide him substitute meals.
Plaintiff further alleges that he was placed, sometimes voluntarily, sometimes
involuntarily, on “suicide watch” for approximately twenty-one (21) days and he was
not given a shower during this time period. Plaintiff complains that during three (3) of
these days he was placed in a dirty cell, with urine and feces on the floor, and no
running water, and he was not given any cleaning supplies to clean his cell. He states
that he was suffering from several rashes on his body and complained that he was in
need of medical care and a shower but that he was denied both by defendants.
Plaintiff complains that defendants failed to provide him with medications that
he was prescribed when he was transferred from one institution to another. In this way,
plaintiff believes that defendants were deliberately indifferent to his serious medical
needs - specifically his mental health needs.
Plaintiff claims that he sought grievance forms on several different occasions but
was denied the forms each time. He claims he was not given the forms until he was
given an “unwarranted conduct violation” on February 23, 2012, by defendant Link.
Defendant asserts that Link “conspired” with his parole officer to get his parole date
“taken away” eight days before he was to make parole.

Plaintiff seeks both monetary damages and injunctive relief in his complaint.
Discussion
Rule 18(a) of the Federal Rules of Civil Procedure states:
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. George v. Smith, 507 F.3d
605, 607 (7th Cir. 2007).
For the most part, however, the instant action presents a case involving
multiple claims against, not one, but thirty-four (34) defendants. Indeed, it appears
that plaintiff is attempting to cram almost every claim he might have ever had
against the thirty-four (34) defendants into one lawsuit. Such pleading practices are
not allowed. 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, a plaintiff cannot normally seek to join in one lawsuit a multitude of claims
against a host of different defendants, relating to events arising out of a series of

different occurrences or transactions. In other words, “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 Cir. 2007). "Unrelated 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.
Because plaintiff is proceeding pro se and in forma pauperis, the Court will
give him an opportunity to file an amended complaint in this action. In so doing,
plaintiff should select the transaction or occurrence he wishes to pursue, in
accordance with Rules 18 and 20 of the Federal Rules of Civil Procedure, and file
an amended complaint, limiting his facts and allegations to the defendant(s) involved
in said occurrence. Plaintiff should only include in his amended complaint those
claims that arise out of the same transaction or occurrence, or simply put, claims
that have some relation to each other. See Fed.R.Civ.P. 20(a)(2). Alternatively,
plaintiff may choose to select one defendant and set forth as many claims as he has
against that single individual. See Fed.R.Civ.P. 18(a).
Plaintiff is reminded that he is required to submit his amended complaint on a
court-provided form, and it must comply with Rules 8 and 10 of the Federal Rules

of Civil Procedure. Specifically, in the "Caption" of the form complaint, plaintiff
shall set forth the name of each defendant he wishes to sue; and in the "Statement of
Claim," plaintiff shall start by typing the first defendant’s name, and under that
name, he shall set forth in separate numbered paragraphs the allegations supporting
his claim(s) as to that particular defendant, as well as the right(s) that he claims that
particular defendant violated. If plaintiff is suing more than one defendant, he shall
proceed in this manner with each of the named defendants, separately setting forth
each individual name and under that name, in numbered paragraphs, the allegations
specific to that particular defendant and the right(s) that he claims that particular
defendant violated.
The amended complaint must contain short and plain statements showing that
plaintiff is entitled to relief, the allegations must be simple, concise, and direct, and
the numbered paragraphs must each be limited to a single set of circumstances. If
plaintiff needs more space, he may attach additional sheets of paper to the amended
complaint and identify them as part of the "Caption" or "Statement of Claim."
Because the Court is allowing plaintiff to amend his complaint, it will take no action
as to the named defendants at this time. Plaintiff is advised that the amended
complaint will replace the original complaint and will be the only pleading this

Court reviews. See, e.g., In re Wireless Telephone Federal Cost Recovery Fees
Litigation, 396 F.3d 922, 928 (8th Cir. 2005).
If plaintiff wishes to pursue additional claims against additional defendants,
and the claims do not arise from the same transaction or occurrence he has chosen
to advance in his amended complaint, he must file each such claim(s) on a separate
complaint form and either pay the $350 filing fee or file a motion for leave to
proceed in forma pauperis. In anticipation of such an occurrence, the Court will
instruct the Clerk to provide plaintiff with the appropriate blank forms for filing a
complaint and motion to proceed in forma pauperis. Because each complaint would
be filed as a new action, plaintiff should not put a cause number on the new
complaint(s). The Clerk of Court will assign a cause number to each new action.
Lastly, plaintiff’s request for appointment of counsel will be denied at this
time, without prejudice, as the Court does not believe that the factual and legal
issues involved in this action are complex, and it is not yet apparent whether
plaintiff has presented non-frivolous allegations supporting his request for relief.
See, e.g., Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986); Nelson v.
Redfield Lithograph Printing, 728 F.2d 1003, 1005 (8th Cir. 1984).
Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motions to proceed in forma
pauperis [Doc. #2 and #8] are GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #4] is DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff shall submit an amended
complaint, in accordance with the instructions set forth in this Memorandum and
Order, no later than thirty (30) days from the date of this Memorandum and Order.
IT IS FURTHER ORDERED that the Court shall mail to plaintiff five
blank form complaints for the filing of a civil rights complaint, as well as five blank
form motions for leave to proceed in forma pauperis. Plaintiff may request
additional forms from the Clerk, as needed.
Dated this 14th day of December, 2012.

/s/Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE