McCray v. Wenger et al
Filing
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MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $29.00 within thirty (30) days of the d ate 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 remittan ce is for an original proceeding. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint within thirty (30) days of the date of this Memorandum and Order or face summary dismissal of this action. Response to Court due by 12/26/2014. Signed by District Judge Rodney W. Sippel on 11/26/14. (JWD)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JESSE J. MCCRAY,
Plaintiff,
v.
PHILIP J. WENGER, et al.,
Defendants.
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No. 4:14CV1939 RWS
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Jesse McCray (registration no.
534964), an inmate at Western Reception Diagnostic and Correctional Center, 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
assess an initial partial filing fee of $29.00. See 28 U.S.C. § 1915(b)(1). Additionally, the Court
will direct plaintiff to submit a signed amended complaint.
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 sixmonth 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 $147.00, and an average monthly
balance of $78.00. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $29.00, 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, 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
Aenough 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 Complaint
Plaintiff brings this action under 42 U.S.C. § 1983 against two doctors at the St. Louis
County Justice Center (“Justice Center”). Plaintiff alleges that while he was detained at the
Justice Center, he was denied adequate pain medicine for his arthritis and gout and that he
suffered unnecessary pain as a result.
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Discussion
The complaint is silent as to whether defendants are being sued in their official or
individual capacities. Where a “complaint is silent about the capacity in which [plaintiff] is
suing defendant, [a district court must] interpret the complaint as including only official-capacity
claims.” Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995); Nix v.
Norman, 879 F.2d 429, 431 (8th Cir. 1989). Naming a government official in his or her official
capacity is the equivalent of naming the government entity that employs the official. Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). To state a claim against a municipality
or a government official in his or her official capacity, plaintiff must allege that a policy or
custom of the government entity is responsible for the alleged constitutional violation. Monell v.
Dep’t of Social Services, 436 U.S. 658, 690-91 (1978). The instant complaint does not contain
any allegations that a policy or custom of a government entity was responsible for the alleged
violations of plaintiff’s constitutional rights. As a result, the complaint fails to state a claim upon
which relief can be granted.
Moreover, the complaint is not signed. Rule 11 of the Federal Rules of Civil Procedure
requires that pro se parties sign their pleadings. Unsigned pleadings may be stricken from the
record.
Because plaintiff is pro se, the Court will allow him to file an amended complaint.
Plaintiff shall have thirty days from the date of this Order to file an amended complaint. Plaintiff
is warned that the filing of an amended complaint replaces the original complaint, and so he must
include each and every one of his claims in the amended complaint. E.g., In re Wireless
Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). In order to
sue defendants in their individual capacities, plaintiff must specifically say so in the complaint.
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Plaintiff must sign his amended complaint. If plaintiff fails to file an amended complaint within
thirty days, the Court will dismiss this action without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $29.00
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 plaintiff shall file an amended complaint within
thirty (30) days of the date of this Memorandum and Order or face summary dismissal of this
action.
Dated this 26th day of November, 2014.
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
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