Monroe v. Bernsen et al
MEMORANDUM AND ORDER : 2 GRANTING MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Jason Monroe ; IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $36.00within thirty (30) d ays of the date of this Order. Plaintiff is instructed to make his remittancepayable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) hisprison registration number; (3) the case number; and (4) that the re mittance is for an originalproceeding.IT IS FURTHER ORDERED that the Clerk is directed to send plaintiff a prisoner civilrights complaint form.IT IS FURTHER ORDERED that plaintiff must file an amended complaint on the Court form within thirty days fr om the date of this Memorandum and Order. If plaintiff fails to comply with this Order, the Court will dismiss this action without further notice. (forms & order mailed to plaintiff) ( Response to Court due by 8/17/2015.). Signed by Magistrate Judge David D. Noce on 7/16/15. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
HERBERT L. BERNSEN, et al.,
No. 4:15 CV 1049 DDN
MEMORANDUM AND ORDER
Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42
U.S.C. § 1983. Having reviewed plaintiff’s financial information, the Court assesses a partial
initial filing fee of $36.00, which is twenty percent of his average monthly deposit. See 28
U.S.C. § 1915(b).
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief under § 1983, a complaint must plead more than “legal conclusions”
and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A plaintiff must
demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Plaintiff alleges that the conditions at the St. Louis County Justice Center are not
conducive to his health. He says he is sleep deprived because the lights are on all night, that he
has not received adequate dental care and has lost teeth, and that he has been retaliated against
for filing grievances.
Plaintiff did not specify whether he is suing defendants in their official or individual
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.
Because plaintiff is proceeding pro se, the Court will allow him to file an amended
complaint. Plaintiff has thirty days from the date of this Order to do so. 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. Moreover, for a
defendant to be liable under § 1983, plaintiff must allege a direct link between the defendant’s
action and the alleged constitutional violation. If plaintiff fails to file an amended complaint
within thirty days, the Court will dismiss this action without prejudice.
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 must pay an initial filing fee of $36.00
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
IT IS FURTHER ORDERED that the Clerk is directed to send plaintiff a prisoner civil
rights complaint form.
IT IS FURTHER ORDERED that plaintiff must file an amended complaint on the
Court form within thirty days from the date of this Memorandum and Order. If plaintiff fails to
comply with this Order, the Court will dismiss this action without further notice.
/s/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on July 16, 2015.
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