Blackwell v. Dooley et al

Filing 7

MEMORANDUM AND ORDER -....IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. 2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $43.00 within thirty(30) da ys of the date of this Order.....IT IS FURTHER ORDERED that plaintiff's motion to amend his complaint [Doc. 6] is GRANTED in accordance with the instructions set forth in this Memorandum and Order. IT IS FURTHER ORDERED that plaint iff shall submit an amended complaint on a court-provided form no later than thirty (30) days from the date of this Memorandum and Order. IT IS FURTHER ORDERED that upon submission of the amended complaint, the Court shall review this action p ursuant to 28 USC § 1915 for frivolousness, maliciousness and for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a copy of the Court's Prisoner Civil Rights Complaint form. ( Initial Partial Filing Fee due by 9/10/2014., Response to Court due by 9/10/2014.). Signed by Magistrate Judge Noelle C. Collins on 8/11/2014. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEITH LAMAR BLACKWELL,
Plaintiff,
v.
CHARLIE A. DOOLEY, et al.,
Defendants.

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No. 4:14CV1061 NCC

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Keith Lamar Blackwell (registration no.
195561), an inmate at St. Louis County Justice Center, for leave to commence this action without
payment of the required filing fee [Doc. #2]. Also before the Court is plaintiff’s motion to amend
his complaint. For the reasons stated below, the Court finds that plaintiff does not have sufficient
funds to pay the entire filing fee and will assess an initial partial filing fee of $43.00. See 28
U.S.C. ' 1915(b)(1).

Additionally, the Court will grant plaintiff’s motion to amend his

complaint, and will require plaintiff to submit his complaint on a court-provided form.
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 $215.06, and an average monthly
balance of $141.66. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $43.00, 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 Alacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319, 328 (1989);
Denton v. Hernandez, 112 S. Ct. 1728, 1733 (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 Aenough facts to state a claim to
relief that is plausible on its face.@ Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007).
The Complaint
Plaintiff brings this action under 42 U.S.C. ' 1983 against Charlie A. Dooley (County
Executive); Garry Earls (Chief Operating Officer); Herbert Bernsen (Director, St. Louis County

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Justice Center); Gerald Kramer; Delores Gunn (Director of Health); Unknown Rodnick (Doctor);
Rita Hendrix (Nurse); and Unknown Wenger.
Plaintiff alleges that the conditions in the St. Louis County Justice Center are unsanitary
and in violation of his civil rights under the 1st and 8th Amendments of the United States
Constitution.

Plaintiff also appears to be alleging that defendants have been deliberately

indifferent to his serious medical needs. The complaint seeks monetary and injunctive relief.
Discussion
In his motion to amend his complaint, plaintiff asserts that he would like to add more
claims and defendants to this action. Although the Court will grant plaintiff’s motion to amend
his complaint, he will be required to adhere to the instructions set forth below in setting forth his
claims.
Plaintiff shall have thirty (30) days from the date of this Order to file an amended
complaint on a court-provided form. The amended complaint must comply with Rules 8 and 10
of the Federal Rules of Civil Procedure. Rule 8(a) requires that a complaint contain a short and
plain statement of the claim showing that the pleader is entitled to relief and a demand for the relief
sought. Rule 10(b) requires that a party must state its claims or defenses in separately numbered
paragraphs, each limited as far as practicable to a single set of circumstances.
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 writing or
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
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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.
Plaintiff is warned that the filing of an amended complaint completely replaces the
original complaint, and claims that are not re-alleged are deemed abandoned. See In re Wireless
Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005).
If plaintiff fails to file an amended complaint on a court-provided form within thirty (30)
days, the Court will dismiss this action without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma pauperis [Doc.
#2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $43.00
within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance
payable to AClerk, 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’s motion to amend his complaint [Doc. #6] is
GRANTED in accordance with the instructions set forth in this Memorandum and Order.
IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint on a
court-provided form no later than thirty (30) days from the date of this Memorandum and Order.
IT IS FURTHER ORDERED that upon submission of the amended complaint, the Court
shall review this action pursuant to 28 U.S.C. ' 1915 for frivolousness, maliciousness and for
failure to state a claim upon which relief may be granted.

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IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a copy of the Court=s
Prisoner Civil Rights Complaint form.
Dated this 11th day of August, 2014.

/s/Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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