Taylor v. Miller et al

Filing 7

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 $1.98 within thirty (30) days fr om 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 re mittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff two copies of the Court's form Prisoner Civil Rights Complaint. IT IS FURTHER ORDERED that, consistent with this Order, plaintiff shall file a second amended complaint on the court-provided form within thirty (30) days of the date of this Order. IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court will dismiss this action without prejudice and without further notice to him.. Signed by District Judge Rodney W. Sippel on 6/2/15. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SAMUEL LEWIS TAYLOR,
Plaintiff,
v.
MICHAEL MILLER, et al.,
Defendants.

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No. 4:15-CV-285-RWS

MEMORANDUM AND ORDER
This matter is before the Court on review of plaintiff=s motion for leave to
proceed in forma pauperis [Doc. #2] and pro se amended complaint [Doc. #6].
Having reviewed plaintiff’s financial information, the Court will grant him in
forma pauperis status and assess an initial partial filing fee of $1.98. In addition,
the Court will instruct plaintiff to file a second 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 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 $9.92, and an
average monthly account balance of $0.00. Plaintiff has insufficient funds to pay
the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$1.98, 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.
either law or fact.@

An action is frivolous if it Alacks an arguable basis in

Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v.
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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).
Background
Plaintiff brings this action pursuant to 42 U.S.C. ' 1983 for constitutional
violations he suffered while confined at the Potosi Correctional Center and
Crossroads Correctional Center during the period of August 2012 through October
2013. Plaintiff names eleven defendants in the amended complaint [Doc. #6], and
his allegations arise out of a host of different occurrences, including many
instances of lost, stolen, and damaged personal property, visitation issues, false
conduct violations, tampering with food trays, access to the courts, and decayed
and rancid candy bars.
Discussion
Rule 18(a) of the Federal Rules of Civil Procedure states:

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A party asserting a claim to relief as an original claim,
counterclaim, cross-claim, or third-party claim, may join,
either as independent or as alternate claims, as many
claims, legal, equitable, or maritime, as the party has
against an opposing party.
As such, multiple claims against a single party are valid.

George v. Smith, 507

F.3d 605, 607 (7th Cir. 2007).
For the most part, however, the instant action presents a case involving
multiple claims against, not one, but eleven defendants. Such pleading practices
are not allowed, especially in prisoner actions where there could be an incentive to
avoid paying separate filing fees. See id. (district court should question joinder of
defendants and claims in prisoner cases).

Federal Rule of Civil Procedure

20(a)(2) is controlling and provides:
Persons . . . may be joined in one action as defendants
if: (A) any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising
out of the 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.
Thus, a plaintiff cannot normally seek to join in one lawsuit a multitude of
claims against a host of different defendants, relating to events arising out of a series
of different occurrences or transactions.

In other words, AClaim A against

Defendant 1 should not be joined with unrelated Claim B against Defendant 2.@
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). "Unrelated claims against
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different defendants belong in different suits, . . . [in part] to ensure that prisoners
pay the required filing fees - for the Prison Litigation Reform Act limits to 3 the
number of frivolous suits or appeals that any prisoner may file without prepayment
of the required fees." Id.
Because plaintiff is proceeding pro se and in forma pauperis, the Court will
give him an opportunity to file a second amended complaint on a court-provided
form.1 In so doing, plaintiff should select the transaction or occurrence he wishes
to pursue in this lawsuit, in accordance with Rule 20 of the Federal Rules of Civil
Procedure, and file a second amended complaint, limiting his facts and allegations
to the defendant(s) involved in said occurrence. Plaintiff should only include in
his second amended complaint those claims that arise out of the same transaction or
occurrence. See Fed.R.Civ.P. 20(a)(2). Application of this rule will usually result
in a complaint containing claims relating to just one event or time period at one
correctional center.
Having decided upon the transaction or occurrence he wishes to pursue,
plaintiff shall set forth in the "Caption" of the complaint the name of each
defendant he wishes to sue; and in the "Statement of Claim," plaintiff shall start by
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The Court will instruct the Clerk to mail plaintiff a blank form complaint
for the filing of a prisoner civil rights action. Plaintiff must complete his second
amended complaint on the court-provided form.
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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 and the capacity in which the defendant is being sued. Plaintiff shall
proceed in this manner with each of the named defendants, separately setting 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.

The second amended complaint must contain short and plain

statements showing that plaintiff is entitled to relief, the allegations must be
simple, concise, and direct, and the numbered paragraphs must each be limited to a
single set of circumstances.

If plaintiff needs more space, he may attach

additional sheets of paper to the amended complaint and identify them as part of
the "Caption" or "Statement of Claim." Plaintiff shall sign the second amended
complaint.
Plaintiff is reminded that he is required to submit his second amended
complaint on a court-provided form, and it must comply with Rules 8 and 10 of the
Federal Rules of Civil Procedure. Plaintiff=s failure to make specific and actionable
allegations against any of defendant(s) will result in that individual=s dismissal from

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this case.2

Plaintiff is advised that the second amended complaint will replace the

original and amended complaints and will be the only pleading this Court reviews.
See, e.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d
922, 928 (8th Cir. 2005).
Last, if plaintiff wishes to pursue additional claims against additional
defendants, and the claims to not arise from the same transaction or occurrence, he
must file each such claim(s) on a separate complaint form and either pay the $400
filing fee or file a motion for leave to proceed in forma pauperis and certified
inmate account statement.
Accordingly,
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 $1.98 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.
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The Court will review plaintiff=s second amended complaint pursuant to 28
U.S.C. ' 1915. A claim and/or defendant must survive ' 1915 review in order for
plaintiff to proceed in this lawsuit.
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IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff two
copies of the Court=s form Prisoner Civil Rights Complaint.
IT IS FURTHER ORDERED that, consistent with this Order, plaintiff
shall file a second amended complaint on the court-provided form within thirty
(30) days of the date of this Order.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this
Order, the Court will dismiss this action without prejudice and without further
notice to him.
Dated this 2nd day of June, 2015.

UNITED STATES DISTRICT JUDGE

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