Graham v. St. Louis Metropolitan Police Department et al

Filing 11

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. # 5 ] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $7.00 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 casenumber; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a copy of the Court=s form Prisoner Civil Rights Complaint. IT IS FURTHER ORDERED that, consistent with this Order, plaintiff shall file an amende d complaint on or before November 2, 2015, on the Court-provided form and in accordance with the specific instructions set forth above. IT IS FURTHER ORDERED that plaintiff's motions for leave to file an amended complaint [Docs. # 2 and # 9 ] a re DENIED as moot, given that the Court has instructed plaintiff to file an amended complaint. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. # 4 ] is DENIED, without prejudice. IT IS FURTHER ORDERED that if pla intiff fails to comply with this Order, the Court will dismiss this action without prejudice and without further notice. (Amended/Supplemental Pleadings due by 11/2/2015.) Signed by District Judge Audrey G. Fleissig on October 2, 2015. (Attachments: # 1 Court=s form Prisoner Civil Rights Complaint)(BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FREDRICK GRAHAM,
Plaintiff,
v.
ST. LOUIS METROPOLITAN
POLICE DEPARTMENT, et al.,
Defendants.

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No. 4:15-CV-1324-AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Fredrick Graham (registration
no. 62834) for leave to commence this action without payment of the required filing
fee [Doc. #5]. After reviewing plaintiff’s financial information, the motion will be
granted, and plaintiff will be assessed an initial partial filing fee of $7.00.
Furthermore, the Court will instruct plaintiff to file an amended complaint on a
Court-provided form, as 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 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.
A review of plaintiff's inmate account statement [Doc. #8] indicates an
average monthly deposit of $35.00 over a five-month period.

Plaintiff has

insufficient funds to pay the entire filing fee at this time. Accordingly, the Court
will assess an initial partial filing fee of $7.00, 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 may 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 against a defendant who is
immune from such relief. An action is frivolous if Ait lacks an arguable basis in
either law or in fact.@ Neitzke v. Williams, 490 U.S. 319, 328 (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 Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
To determine whether an action fails to state a claim upon which relief can
be granted, the Court must engage in a two-step inquiry.

First, the Court must

identify the allegations in the complaint that are not entitled to the assumption of
truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These include "legal
conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that
are] supported by mere conclusory statements." Id. at 1949. Second, the Court
must determine whether the complaint states a plausible claim for relief.

Id. at

1950-51. This is a "context-specific task that requires the reviewing court to draw
on its judicial experience and common sense."

Id. at 1950.

The plaintiff is

required to plead facts that show more than the "mere possibility of misconduct."
Id. The Court must review the factual allegations in the complaint "to determine
if they plausibly suggest an entitlement to relief." Id. at 1951. When faced with
alternative explanations for the alleged misconduct, the Court may exercise its
judgment in determining whether plaintiff's conclusion is the most plausible or
whether it is more likely that no misconduct occurred. Id. at 1950, 51-52.
Moreover, in reviewing a pro se complaint under ' 1915(e)(2)(B), the Court
must give the complaint the benefit of a liberal construction.
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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, 504 U.S. 25, 32-33 (1992).
The Complaint
Plaintiff, an inmate at the Ste. Genevieve Detention Center, filed this 42
U.S.C. ' 1983 action on or about August 24, 2015 [Doc. #1]. On September 11,
2015, plaintiff filed a motion to file an amended complaint, and he attached a
proposed pleading drafted on a Court form [Doc. #2]. Thereafter, plaintiff filed a
motion for appointment of counsel [Doc. #4], and on September 17, 2015, he filed a
second motion to again amend the complaint [Doc. # 9]. For the following reasons,
the Court will instruct plaintiff to file one amended complaint on a Court-provided
form and will deny, without prejudice, plaintiff’s motion for counsel.
All claims in an action must be included in one, centralized complaint form,
as neither the Court nor defendants wish to search through supplemental and prior
pleadings in order to piece together plaintiff=s claims.

As such, plaintiff is

warned that the filing of an amended complaint replaces the original
complaint and all previously-filed pleadings and supplements, and therefore,
he must include each and every one of the claims he wishes to pursue in the
amended complaint. See, e.g., In re Wireless Tel. Fed. Cost Recovery Fees
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Litig., 396 F.3d 922, 928 (8th Cir. 2005).

Any parties and/or claims from the

original complaint, supplements, and/or pleadings that are not included in the
amended complaint will be deemed abandoned and will not be considered.
Id.

Plaintiff is advised that the amended complaint will replace all

previously-filed pleadings and will be the only pleading this Court reviews.
See id. If plaintiff wishes to sue defendants in their individual capacities,
plaintiff must specifically say so in the amended complaint.
Plaintiff should not attach any exhibits to the amended complaint; all claims
should be clearly set forth in the "Statement of Claim."

In addition, in the

"Caption" of the amended 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 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 amended complaint must contain short and plain
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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”; however, as previously stated, plaintiff
shall not attach any exhibits to the pleading. Plaintiff shall sign the amended
complaint.
Plaintiff is reminded that he is required to submit his 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 this case.1
If plaintiff fails to file an amended complaint on a Court form in accordance with
the Court’s instructions, this action will be dismissed without prejudice and
without further notice.
With regard to plaintiff’s motion for appointment of counsel [Doc. #4], he
asserts that he is indigent, his knowledge of the law is limited, the issues in this case

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The Court will review plaintiff=s 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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are complex, and his imprisonment will “greatly limit his ability to litigate.” 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
it appears that plaintiff is able to present his claims. Consequently, the motion will
be denied at this time, without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #5] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $7.00 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
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number; and (4) that the remittance is for an original proceeding.
IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a copy of
the Court=s form Prisoner Civil Rights Complaint.
IT IS FURTHER ORDERED that, consistent with this Order, plaintiff
shall file an amended complaint on or before November 2, 2015, on the
Court-provided form and in accordance with the specific instructions set forth
above.
IT IS FURTHER ORDERED that plaintiff’s motions for leave to file an
amended complaint [Docs. #2 and #9] are DENIED as moot, given that the Court
has instructed plaintiff to file an amended complaint.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #4] is DENIED, without prejudice.
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.
Dated this 2nd day of October, 2015.

_______________________________________
UNITED STATES DISTRICT JUDGE

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