Wilson v. St. Louis County et al

Filing 8

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 $12.37 within thirty (30) day s 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 th e remittance is for an original proceeding. IT IS FURTHER ORDERED that, consistent with the instructions set forth in this Memorandum and Order, plaintiff shall file an amended complaint within thirty (30) days from the date of this Order.1 IT IS FUR THER ORDERED that the Clerk shall mail to plaintiff the court-provided 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 i nstructions will result in the dismissal of this action, without prejudice and without further notice. IT IS FURTHER ORDERED that plaintiff's motion for counsel [Doc. # 3 ] is DENIED without prejudice. IT IS FURTHER ORDERED that plaintiff' s motion for leave to file an amended complaint that was not prepared on a court-provided form [Doc. # 6 ] is DENIED. ( Amended/Supplemental Pleadings due by 6/4/2015.). Signed by District Judge Audrey G. Fleissig on May 5, 2015. (Attachments: # 1 Prisoner Complaint Pursuant to 42 U.S.C. 1983)(BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARNELL WILSON,
Plaintiff,
v.
ST. LOUIS COUNTY, et al.,
Defendants.

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No.

4:15-CV-476-AGF

MEMORANDUM AND ORDER
This matter is before the court on review of plaintiff= motion for leave to
proceed in forma pauperis [Doc. #2], motion for appointment of counsel [Doc. #3],
and motion for leave to file an amended complaint [Doc. #6]. For the following
reasons, the court will (1) grant plaintiff in forma pauperis status and assess him an
initial partial filing fee of $12.37; (2) deny without prejudice plaintiff’s motion for
counsel; and (3) instruct plaintiff to file an amended complaint on a court form in
accordance with the instructions set forth below.
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 twenty 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
$61.83, and an average monthly balance of $26.77. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the court will assess an initial partial filing
fee of $12.37, which is twenty 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 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
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fails to state a claim upon which relief can be granted 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).
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, 112 S. Ct. 1728,
1733 (1992).
The Complaint
Plaintiff, an inmate at the St. Louis County Justice Center, seeks monetary
relief against St. Louis County and four Des Peres police officers in this 42 U.S.C. '
1983 action for the violation of his constitutional rights following the alleged use of
deadly force on January 15, 2015. In addition, plaintiff has filed a motion to amend
the complaint.
Discussion
At the outset, the court notes that the proposed amended complaint [Doc. #6,
Attachment #1] is defective, because it was not drafted on a court-provided form.
See Local Rule 2.06(A). Moreover, the Court does not allow parties to amend their
pleadings by interlineation or supplementation.

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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 on a
court-provided form in accordance with the instructions set forth below.
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 typing the first defendant=s name and 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 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 should
not attach any exhibits to his amended complaint; all his claims should be clearly set
forth in the "Statement of Claim."
In addition, the amended complaint must comply with Rules 8 and 10 of the
Federal Rules of Civil Procedure. More specifically, the 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

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may attach additional sheets of paper to the amended complaint and identify them as
part of the "Caption" or "Statement of Claim." Because the court is allowing
plaintiff to amend his complaint, it will take no action as to the named defendants at
this time. Plaintiff is advised that the amended complaint will replace the original
complaint 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). Plaintiff risks dismissal of this action if he fails to comply with this court's
instructions.
In addition, plaintiff has filed a motion for appointment of counsel on the
ground that he is indigent and cannot afford an attorney. For the following reasons,
the motion will be denied without prejudice.
AA pro se litigant has no statutory or constitutional right to have counsel
appointed in a civil case.@ Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998).
When determining whether to appoint counsel for an indigent litigant, the court
considers relevant factors, such as the complexity of the case, the ability of the pro se
litigant to investigate the facts, the existence of conflicting testimony, and the ability
of the pro se litigant to present his or her claim. Id.
After reviewing these factors, the court finds that the appointment of counsel
is not warranted at this time. This case is neither factually nor legally complex, and

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it is evident that plaintiff is able to present his claims against defendants.
Consequently, the motion will be denied at this time, without prejudice.
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 $12.37 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, consistent with the instructions set forth
in this Memorandum and Order, plaintiff shall file an amended complaint within
thirty (30) days from the date of this Order.1
IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff the
court-provided 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.
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For his amended complaint, plaintiff shall use the court-provided form for
filing a prisoner complaint pursuant to 42 U.S.C. ' 1983.
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IT IS FURTHER ORDERED that plaintiff’s motion for counsel [Doc. #3]
is DENIED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion for leave to file an
amended complaint that was not prepared on a court-provided form [Doc. #6] is
DENIED.
Dated this 5th day of May, 2015.

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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