Edwards v. Clark et al
MEMORANDUM AND ORDER. (See Full Order.) 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 $1.00 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 th e remittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk is directed to mail plaintiff a prisoner civil rights complaint form. IT IS FURTHER ORDERED that plaintiff must submit an amended complaint within twenty-eight (28) days from 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 further proceedings. Signed by District Judge E. Richard Webber on 3/23/2016. (Form and order mailed to plaintiff at St. Louis City Workhouse this date.)(CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LT. CLARK, et al.,
No. 4:16CV331 ERW
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 $1.00, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, the Court will require plaintiff to submit an amended complaint.
Standard of Review
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, 556 U.S. 662, 678 (2009).
A plaintiff must
demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief [is] a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
Plaintiff is a pretrial detainee at the St. Louis Medium Security Institution. Defendants
are correctional officers there. Plaintiff requested protective custody from each of the defendants
because another inmate was threatening him. They all refused. He was subsequently assaulted
by the other inmate. As a result of the assault, he suffered from facial fractures and a head
injury. He had to be taken to the St. Louis University Hospital Emergency Room for treatment.
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 plaintiff to file an amended
complaint. 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). Any claims from the original complaint that are not included in
the amended complaint will be considered abandoned. Id. Plaintiff must allege how each
and every defendant is directly responsible for the alleged harm.
In order to sue
defendants in their individual capacities, plaintiff must specifically say so in the complaint.
If plaintiff fails to sue defendants in their individual capacities, this action may be subject
to dismissal. Finally, plaintiff should attempt to learn the first names of the defendants so that
the Court can promptly serve them with process.
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 $1.00
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 mail plaintiff a prisoner civil
rights complaint form.
IT IS FURTHER ORDERED that plaintiff must submit an amended complaint within
twenty-eight (28) days from 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 further proceedings.
So Ordered this 23rd day of March, 2016.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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