Burgdorf v. Missouri Department of Corrections et al
Filing
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OPINION, MEMORANDUM AND ORDER: HEREBY ORDERED that plaintiff's motion for reconsideration [Doc. # 7 ] is GRANTED IN PART AND DENIED IN PART. The motion is granted to the extent that plaintiff seeks to reopen this case for consideration of his i ndividual capacity claims against Terry Lawson; the motion is denied in all other respects. IT IS FURTHER ORDERED that, the Clerk of Court shall mail plaintiff a prisoner civil rights complaint, and, within thirty days of the date of this Order and i n accordance with the instructions set forth above, plaintiff shall file an amended complaint, on the Court-provided form, against Terry Lawson in her individual capacity. FURTHER ORDERED that if plaintiff fails to comply with this Order, this action will be dismissed without prejudice and without further notice to him. Signed by District Judge Henry Edward Autrey on 03/18/2015. (Attachments: # 1 Prisoner Civil Rights Complaint Form mailed)(CLK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EDWARD DALE BURGDORF,
Plaintiff,
v.
MISSOURI DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
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No. 4:15CV284 HEA
OPINION, MEMORANDUM AND ORDER
Before the Court is plaintiff’s motion to reconsider the March 6, 2015
Memorandum and Order, dismissing this action as legally frivolous [Doc. #7]. For
the following reasons, the motion will be granted in part and denied in part.
Background and Discussion
Plaintiff, an inmate at the Potosi Correctional Center, brought this 42 U.S.C. '
1983 action for alleged constitutional violations against the Missouri Department of
Corrections and Terry Lawson (Assistant Warden). Plaintiff asserted that in 2013
defendant Lawson “forced [him] to work in the satellite kitchen, knowing that [he]
had a medical lay-in not to lift more than 10 lbs. and NO repetitive use of right
hand/wrist.” Plaintiff further alleged that, as a result, he sustained serious physical
injuries.
After reviewing the complaint pursuant to 28 U.S.C. ' 1915, this Court
dismissed plaintiff’s claims against the Missouri Department of Corrections as
barred under the Eleventh Amendment. In the instant motion for reconsideration,
plaintiff concedes that the Missouri Department of Corrections is not subject to suit
under 42 U.S.C. ' 1983 and was properly dismissed.
In addition, the Court dismissed defendant Terry Lawson in her official
capacity. Finding that the complaint was silent as to the capacity in which
Lawson was being sued, the Court liberally construed the action as alleging only
official capacity claims, and dismissed them as legally frivolous. Plaintiff does
not challenge this ruling, but asserts that he had sued Lawson in both her individual
and official capacities. Upon review, the Court sees that on page 3 of the
complaint, above the defendant’s name and address, plaintiff notes that he is suing
Lawson in her official and individual capacities.
Because plaintiff’s claims
against Terry Lawson in her individual capacity have not been considered by the
Court, and because it appears that plaintiff has additional allegations he would like
to assert against her, the Court will reopen this case and allow plaintiff to file an
amended complaint as to defendant Lawson in her individual capacity.
The amended complaint shall be typed or legibly handwritten on a
Court-provided form for filing a prisoner civil rights complaint. The Federal Rules
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of Civil Procedure require litigants to formulate their pleadings in an organized and
comprehensible manner. Even pro se litigants are obligated to abide by the Federal
Rules of Civil Procedure. See U.S. v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994);
Boswell v. Honorable Governor of Texas, 138 F.Supp.2d 782, 785 (N.D. Texas
2000); Fed.R.Civ.P. 8(a)(2) (complaint should contain short and plain statement of
claims); Fed.R.Civ.P. 8(e)(2) (each claim shall be simple, concise, and direct);
Fed.R.Civ.P. 10(b) (parties are to separate their claims within their pleadings the
contents of which shall be limited as far as practicable to a single set of
circumstances). Although the Court is to give the complaint the benefit of a liberal
construction, the Court will not create facts or claims that have not been alleged.
Plaintiff is required, to the best of his ability, to set out in a simple, concise, and
direct manner, not only his claims, but also the facts supporting these claims as to
defendant Terry Lawson. Plaintiff is advised that his amended complaint will
supersede his original complaint and will be the only complaint this Court reviews.
Moreover, in the section of the complaint entitled "Statement of Claim," plaintiff
must set out, in separate numbered paragraphs and in a simple, concise, and direct
manner, the specific facts relative to his claim(s) against Terry Lawson in her
individual capacity. Plaintiff should not attach exhibits to his complaint. Plaintiff
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risks dismissal of the instant action if he fails to comply with this Court's
instructions.
Last, in his motion for reconsideration, plaintiff asks for an “advisory order”
directed to defendant Lawson, stating, for example, that she should not engage in
retaliation by conducting extra cell searches and generally harassing plaintiff.
Plaintiff’s request for an advisory order will be denied; if plaintiff has specific
complaints against Lawson, he should clearly state them in his amended complaint.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for reconsideration
[Doc. #7] is GRANTED IN PART AND DENIED IN PART. The motion is
granted to the extent that plaintiff seeks to reopen this case for consideration of his
individual capacity claims against Terry Lawson; the motion is denied in all other
respects.
IT IS FURTHER ORDERED that, the Clerk of Court shall mail plaintiff a
prisoner civil rights complaint, and, within thirty days of the date of this Order and in
accordance with the instructions set forth above, plaintiff shall file an amended
complaint, on the Court-provided form, against Terry Lawson in her individual
capacity.
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IT IS FURTHER ORDERED that if plaintiff fails to comply with this
Order, this action will be dismissed without prejudice and without further notice to
him.
Dated this 18th day of March, 2015
___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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