Box v. Steele et al

Filing 15

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Clerk shall mail to plaintiff a copy of the Court's form Prisoner Civil Rights Complaint. IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a copy of the Court's form Motion to P roceed in Forma Pauperis- Prisoner Cases. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on the Courtprovided form in compliance with this Courts Memorandum and Order within thirty (30) days of the date of this Order. IT IS FUR THER ORDERED that plaintiff shall either pay the $400 filing fee or submit a motion to proceed in forma pauperis within thirty (30) days of the date of this Memorandum and Order. IT IS FURTHER ORDERED that plaintiff's motions to compel and for access to the Courts are DENIED. [Docs. 4, 5, and 8] IT IS FURTHER ORDERED that if plaintiff fails to comply with this Memorandum and Order, the Court will dismiss this action without prejudice. Signed by District Judge Charles A. Shaw on 7/10/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEITH BOX,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
TROY STEELE, et al.,
Defendants.

No. 4:13-CV-1052 CAS

MEMORANDUM AND ORDER
Before the Court is plaintiff’s request to proceed without payment of the filing fee, along
with plaintiff’s complaint, amended complaint, second amended complaint, third amended
complaint and three motions to compel and for access to the Courts. After fully reviewing plaintiff’s
filings, the Court makes the following findings.
Procedural History
Plaintiff, an inmate at Potosi Correctional Center, filed the instant action pursuant to 42
U.S.C. § 1983 alleging violations of his civil rights on May 30, 2013. Although he did not file a
separate motion seeking leave to proceed in forma pauperis, within the body of his handwritten
complaint, plaintiff requested leave to proceed without payment of the required filing fee.
In the Prison Litigation Reform Act of 1996, Congress enacted what is commonly described
as the “three strikes” provision of 28 U.S.C. § 1915(g).
It provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may

be granted, unless the prisoner is under imminent danger of serious
physical injury.
If a prisoner is ineligible to proceed under § 1915, then he may still file an action or appeal, but he
must pay the full filing fee up front or suffer dismissal. Ashley v. E. Dilworth, CO–1, 147 F.3d 715,
716–17 (8th Cir.1998).
Plaintiff has filed at least three previous cases that were dismissed as frivolous, malicious
or for failure to state a claim.1 Accordingly, plaintiff has “three strikes,” and he cannot proceed in
a § 1983 action unless he pays the full filing fee or shows that at the time of filing his complaint, he
was being subjected to “imminent danger.” 28 U.S.C. § 1915(g).
In the body of his original complaint, plaintiff alleges that he is under “imminent danger.”
He claims that he was subjected to excessive force on May 22, 2013 by a correctional officer and
as a result he suffered injuries to his right rib, right wrist, middle lower back, and left eye. He
claims that he has cuts on his arms and legs from the handcuffs and leg irons and that “none of the
areas have had medical treatment or x-rays” and that he has not “been given any medicine for pain,
or seen by a doctor.” Plaintiff additionally claims, in a conclusory manner, that he is in imminent
danger because the officer who purportedly subjected him to excessive force, Officer Comer, “is the
person who serves my lunch meal denying me access to eat.”
In his amended complaint, filed on June 11, 2013, plaintiff seeks to add additional
handwritten claims and defendants to this action through a supplemental pleading to his original
complaint. His pleading is difficult to follow and appears to involve descriptions of several different

1

See Box v. Bollinger, Case No. 1:02CV105 FRB (E.D. Mo.); Box v. Scott County Jail,
Case No. 1:96CV69 LMB (E.D. Mo); Box v. Mississippi County Jail, Case No. 1:96CV22 LMB
(E.D. Mo.).
-2-

allegations and defendants not included in his original complaint. Plaintiff fails to make any
concrete allegations of “imminent danger” in his amended complaint, although he does repeat his
need for additional medical treatment for injuries allegedly received from the May 22, 2013
altercation.
In his second amended complaint, filed on June 14, 2013, plaintiff again seeks to add claims
and defendants to this actions by supplemental pleading. Plaintiff fails to make any allegations of
“imminent danger” in his pleading, rather, he alleges due process violations related to conduct
violations he received for the May 22, 2013 incident.
In his third amended complaint, filed on June 24, 2013, plaintiff again seeks to add parties
and claims to this action through a supplemental pleading. His claims primarily involve his
complaints about the prison mail system and a conduct violation he received for “funds deposited
in another offender’s account.” Again, his pleading is devoid of allegations of “imminent danger.”
Rather, plaintiff notes that he has seen a doctor for his injuries from the May 22, 2013 incident, but
he disagrees with the diagnoses he has been given.
Discussion
A. Plaintiff’s Complaints
Plaintiff’s pleadings in this case are defective for several reasons. First and foremost, his
complaint is defective because it has not been drafted on a Court-provided form, see Local Rule
2.06(A), and because plaintiff has neither paid the filing fee nor submitted a motion to proceed
in forma pauperis, see 28 U.S.C. § 1915(a).2

2

As noted above, there is a question in this case whether the Court will allow plaintiff to
proceed in forma pauperis should he formally request to do so by filing a motion to proceed in
forma pauperis. Plaintiff has filed at least three previous cases that were dismissed as frivolous,
-3-

Additionally, plaintiff has attempted to “supplement” his complaint by filing additional
pleadings and calling the pleadings, “first amended complaint,” and so forth. The Court does not
accept “supplements” to pleadings, or amendments to complaints by interlineation. If a plaintiff
wishes to amend his complaint, he must include with his motion to amend a proposed complaint that
includes each and every claim he wishes to bring against every defendant in this action. Plaintiff
is warned that the filing of an amended complaint completely replaces the original complaint, and
claims that are not realleged are deemed abandoned. E.g., In re Wireless Telephone Federal Cost
Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). In other words, plaintiff may not seek
to amend his original pleading by attempting to “add parties” or “add claims” through a supplement.
Third, the complaint fails to meet the requirements of Federal Rules of Civil Procedures 8,
10 and 20. Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint contain (1)
“a short and plain statement of the grounds for the court’s jurisdiction,” (2) “a short and plain
statement of the claim showing that the pleader is entitled to relief,” and (3) “a demand for the relief
sought.” Rule 10(b) directs parties to separate their claims within their pleadings and provides that
the contents of which shall be “limited as far as practicable to a single set of circumstances.” Rule
10(b) further requires that where “doing so would promote clarity, each claim founded on a separate
transaction or occurrence . . . must be stated in a separate count . . .” Id. Under Rule 20(a)(2), a
plaintiff may join several persons as defendants in a single complaint if “(A) any right to relief is
asserted against them jointly, severally, or in the alternative with respect to or arising out of the

malicious or for failure to state a claim. Accordingly, plaintiff has “three strikes,” and he
cannot proceed in a § 1983 action unless he pays the full filing fee or shows that at the time of
filing his complaint, he is being subjected to “imminent danger.” 28 U.S.C. § 1915(g) (emphasis
added).
-4-

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.” Fed. R. Civ. P. 20(a)(2) (emphasis
added).
The complaint is not simple, concise, or direct, nor does it contain a short and plain
statement of plaintiff’s claims for relief. Claims founded on separate transactions and occurrences
are not stated in separate counts. And plaintiff has attempted to join several defendants who are
unconnected by any question of law or fact in the complaint. Moreover, as noted previously,
plaintiff is subject to the “three strikes” provision of § 1915, and the Court is not convinced that
plaintiff is suffering “imminent danger” at the time of the filing of the complaint.
Because plaintiff is proceeding pro se, the Court will allow him to file an amended complaint
that complies with the Federal Rules of Civil Procedure. Plaintiff must also file either a motion to
proceed in forma pauperis or pay the required filing fee. Plaintiff shall have thirty days from the
date of this Order to comply with these requirements. If plaintiff fails to file an amended complaint
within thirty days and file his motion to proceed in forma pauperis or pay the required filing fee, the
Court will dismiss this action without prejudice. If plaintiff wishes to bring several unrelated claims
against unrelated defendants, he must do so in separate complaints, filed in separate actions. George
v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
B.

Plaintiff’s Motions to Compel and For Access to the Courts
In his motions to compel and for access to the Courts, plaintiff asserts he is being denied

access to the Courts. In his first motion for access to the Courts, plaintiff states that he has been
denied surveillance/videotape evidence he requires to defend himself in his administrative hearings
related to the conduct violations he has received. Plaintiff also states in a conclusory manner that

-5-

“defendants are blocking plaintiff’s access to exhaust administrative remedies.” Plaintiff states that
he is in need of the aforementioned evidence to “provide [his] innocence and [defendants’] official
misconduct.”
In his second motion to compel and for access to the Courts, plaintiff seeks the names of
certain defendants in order to better identify them in his pleadings, and he again requests copies of
“surveillance” and “videotapes” from April 1, 2013 to May 22, 2013 of “Housing Unit Five inside
A-Wing.” Plaintiff does not indicate the reasons for his request.
In his third motion to compel and for access to the Courts, plaintiff states that the Warden
at Potosi, Troy Steele, has instituted a new policy limiting the amount of money inmates in
administrative segregation, like himself, are allowed to spend toward postage stamps to send legal
materials. Plaintiff asserts that he has over “300 pages of documentations to prove the claims cited
in his civil complaint. . .” Plaintiff admits, however, that there is a mechanism to be granted a
waiver of the policy, by filing a form called a “Qualified Legal Claim Form,” but he states that he
does not know how long it takes to hear back about approval of such a form. He claims he filled
out the form three weeks ago and he has not been told whether or not he has been granted a waiver.
“To state a claim [for denial of meaningful access to the courts], inmates must assert that
they suffered an actual injury to pending or contemplated legal claims.” Myers v. Hundley, 101
F.3d 542, 544 (8th Cir. 1996). None of the claims filed by plaintiff in his three motions to compel
and for access to the Courts state an injury to a pending or contemplated legal claim.
Plaintiff has not shown that he has been prejudiced in any way in his current legal
proceedings by the fact that his Qualified Legal Claim Form has not yet been approved by the
Warden at Potosi. To the contrary, plaintiff has filed a plethora of documents in this case arguing

-6-

a myriad of different topics. Thus, he has not shown a denial of access to Courts claim at this time
with respect to the institution’s use of the “Qualified Legal Claim Form.”
Similarly, plaintiff cannot show an access to Court’s claim with respect to his claim that his
administrative process has been impeded by the institution’s failure to provide him with videotape
and surveillance evidence that he believes he is entitled to for defense in his administrative
proceedings. Plaintiff’s claim is not really an access to Courts claim, but rather a due process claim
under the Fourteenth Amendment3, which this Court will not entertain on a motion to compel.4 As
such, plaintiff’s motion to compel defendants to provide him with access to surveillance/videotapes
for defense of his administrative hearings will be denied at this time.
Accordingly,
IT IS HEREBY ORDERED that the Clerk shall mail to plaintiff a copy of the Court’s form
Prisoner Civil Rights Complaint.
IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a copy of the Court’s
form Motion to Proceed in Forma Pauperis- Prisoner Cases.

3

In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court limited the due process
protections of prisoners, holding that in-prison restrictions deprive them of “liberty” within the
meaning of the Due Process Clauses only if they “impose an atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.”
4

“In the context of a state prison system, an inmate grievance procedure is not
constitutionally required.” Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). “If the
state elects to provide a grievance mechanism, violations of its procedures do not deprive
prisoners of federal constitutional rights. Therefore, a state’s failure to follow its grievance
procedures does not give rise to a § 1983 claim.” Id.
-7-

IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on the Courtprovided form in compliance with this Court’s Memorandum and Order within thirty (30) days of
the date of this Order.
IT IS FURTHER ORDERED that plaintiff shall either pay the $400 filing fee or submit
a motion to proceed in forma pauperis within thirty (30) days of the date of this Memorandum and
Order.
IT IS FURTHER ORDERED that plaintiff’s motions to compel and for access to the
Courts are DENIED. [Docs. 4, 5, and 8]
IT IS FURTHER ORDERED that if plaintiff fails to comply with this Memorandum and
Order, the Court will dismiss this action without prejudice.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 10th day of July, 2013.

-8-