Lebon et al v. Missouri State Public Defender System et al

Filing 12

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $1.75 within thirty (30) days f rom 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 rem ittance is for an original proceeding. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on or before December 1, 2013.1 In the amended complaint, plaintiff shall complete in its entirety the court-provided form for filing a compl aint pursuant to 42 U.S.C. § 1983. 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," he shall set forth as to each na med defendant the specific factual allegations supporting his claim against the particular defendant, as well as the specific rights that he claims the defendant violated. IT IS FURTHER ORDERED that the Clerk shall provide plaintiff with a copy of th e court form for filing a prisoner complaint pursuant to 42 U.S.C. § 1983. IT IS FURTHER ORDERED that plaintiff's failure to amend his complaint in accordance with this Court's instructions will result in the dismissal of this action, without prejudice and without further notice to him. IT IS FURTHER ORDERED that, upon the filing of the amended complaint, the Clerk shall resubmit this action to the Court for review pursuant to 28 U.S.C. § 1915. Plaintiff is advised that the C ourt will consider only the amended complaint when reviewing this action under § 1915. (NOTE: Copy of order and court form for filing a prisoner complaint pursuant to 42 U.S.C. Sec. 1983 mailed to Plaintiff) Signed by Magistrate Judge Shirley P. Mensah on 11/4/13. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THOMAS PAUL LEBON,
Plaintiff,
v.
MISSOURI STATE PUBLIC
DEFENDER SYSTEM, et al.,

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No. 4:13-CV-1834-SPM

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Defendants.

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MEMORANDUM AND ORDER
This matter is before the Court upon the application of Thomas Paul Lebon
(registration no. 358989) 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 entire filing fee and will, therefore, assess an initial
partial filing fee of $1.75. See 28 U.S.C. § 1915(b)(1). In addition, the Court will
instruct plaintiff to file an amended complaint on a Court form on or before December
1, 2013.
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 six-month period. See 28 U.S.C. §
1915(b)(1). 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. See 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. See 28 U.S.C. § 1915(a)(1),(2). A review of plaintiff's account statement
indicates an average monthly deposit of $8.75, and an average monthly account balance
of $.60. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $1.75, 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 may dismiss a complaint filed
in forma pauperis at any time if the action is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief against a defendant who is
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immune from such relief. An action is frivolous if "it lacks an arguable basis either in
law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). 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).
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the
complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). The Court must also 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).
The Complaint
Plaintiff, an inmate at the Missouri Eastern Correctional Center, has submitted
a complaint against the Missouri State Public Defender System and Cathy R. Kelly
(Director) [Doc. #1]. Upon review, however, the Court finds that plaintiff has failed
to assert any allegations against either of the two named defendants. Taking into
consideration the fact that plaintiff is proceeding pro se and in forma pauperis, the
Court will grant him time to file an amended complaint, as set forth below. See
Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (liability under § 1983
requires causal link to, and direct responsibility for, alleged deprivation of rights);
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Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable under
§ 1983 where plaintiff fails to allege defendant was personally involved in or directly
responsible for incidents that injured plaintiff). Plaintiff is advised that the amended
complaint will supersede his original complaint and will be the only pleading the Court
considers.
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee
of $1.75 within thirty (30) days from 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 plaintiff shall file an amended complaint on
or before December 1, 2013.1 In the amended complaint, plaintiff shall complete in
its entirety the court-provided form for filing a complaint pursuant to 42 U.S.C. § 1983.

For his amended complaint, plaintiff shall use the court-provided form for
filing a complaint pursuant to 42 U.S.C. § 1983. The Court will instruct the Clerk
to send plaintiff the court form for filing a § 1983 action.
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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," he shall set forth
as to each named defendant the specific factual allegations supporting his claim against
the particular defendant, as well as the specific rights that he claims the defendant
violated.
IT IS FURTHER ORDERED that the Clerk shall provide plaintiff with a copy
of the court form for filing a prisoner complaint pursuant to 42 U.S.C. § 1983.
IT IS FURTHER ORDERED that plaintiff's failure to amend his complaint in
accordance with this Court's instructions will result in the dismissal of this action,
without prejudice and without further notice to him.
IT IS FURTHER ORDERED that, upon the filing of the amended complaint,
the Clerk shall resubmit this action to the Court for review pursuant to 28 U.S.C. §
1915. Plaintiff is advised that the Court will consider only the amended complaint
when reviewing this action under § 1915.
Dated this 4th day of November, 2013.

/s/ Shirley Padmore Mensah
UNITED STATES MAGISTRATE JUDGE

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