Foster v. Lombardi et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs 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 $1.70 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 fo r an original procceeding. 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 submit an amended complaint within twenty-one (21) 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. (Amended/Supplemental Pleadings due by 5/31/2016.). Signed by District Judge Ronnie L. White on May 10, 2016. (Attachments: # 1 Prisoner civil rights complaint form)(BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WILLIAM WINTWORTH FOSTER,
Plaintiff,
v.

GEORGE LOMBARDI, et al. ,
Defendants.

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No. 4:16CV373 RLW

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 plaintiffs financial information, the Court assesses a partial
initial filing fee of $1.70, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, the Court will require plaintiff to file 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
concl~sory 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.
The Complaint

Plaintiff seeks to certify this case as a class action. He alleges that inmates cannot buy
hygiene items because court filing fees are taken from their accounts, that religious dietary meals
do not contain enough calories, that there is too much noise in his housing unit, that he has been
denied medical care, that he and other inmates are sleep deprived, that he has been denied access
to the courts, and that he has been retaliated against for filing grievances.

The complaint

purportedly concerns "thousands" of inmates.
Discussion

Under Rule 23(a)(4), a class representative must "fairly and adequately protect the
interests of the class." Additionally, a litigant may bring his own claims to federal court without
counsel, but not the claims of others. See 28 U.S .C. § 1654; see also 7A Wright, Miller & Kane,
Federal Practice and Procedure: Civil 3d § 1769.1 ("class representatives cannot appear prose.").
Therefore, plaintiffs attempt to certify this case as a class action is frivolous .
Because the <;omplaint attempts to bring claims unrelated to plaintiff, the Court will
require him to file an amended complaint. The amended complaint must be limited to alleged
violations of plaintiffs own rights.

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

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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.
Accordingly,

IT IS HEREBY ORDERED that plaintiffs 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 $1.70
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
. I
procee d mg.

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 submit an amended complaint within
twenty-one (21) 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.

DatedthisraayofMay, 2016.

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ONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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Prisoners must pay the full amount of the $350 filing fee . 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. The agency having custody of the prisoner will deduct the payments and forward them to the
Court each time the amount in the account exceeds $10. 28 U.S.C. § 1915(b)(2).

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