Edwards v. Hubbard et al
MEMORANDUM AND ORDER: IT IS HEREBY 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-eight (28) days from the date of this Memorandum and Order. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $3.00 within twenty-eight (28) days of the date of this Order. Plaintiff is instructed to make hisremittance payable to "Clerk, United State s 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 if plaintiff does not comply with this Memorandum and Order, the Court will dismiss this case without further proceedings. Signed by District Judge John A. Ross on 5/27/16. (JAB)(Remark:Order and form mailed to plaintiff)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JAMES J. HUBBARD, et al.,
No. 4:16-CV-480 JAR
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 $3.00, 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 imprisoned at the Potosi Correctional Center ("PCC"). Named as defendants
are James Hubbard, Correctional Officer; Christy Pashia; Travis Crews; Cindy Griffith, Warden,
PCC; and Jamie Crump.
Plaintiff alleges that during a cell transfer defendant Hubbard and Officer Cain applied
wrist restraints to him but did not apply restraints to his cell mate. He claims his cell mate
attacked him and injured him during the transfer. He asserts that Hubbard and Cain negligently
failed to follow prison procedures when they failed to restrain his cell mate. He does not state
that they failed to intervene and protect him from the assault. Plaintiff seeks to hold defendant
Griffith responsible because of her supervisory responsibilities over the correctional officers.
There are no allegations pertaining to the remaining defendants.
The Eighth Amendment requires officials to "provide humane conditions of
confinement" by taking ·reasonable steps to protect inmates convicted of crimes from assault by
other inmates. Farmer v. Brennan, 511 U.S. 825, 832 (1994). To prove unconstitutional failure
to protect from harm, plaintiff must show an objectively, sufficiently serious deprivation,
meaning that he was incarcerated under conditions posing a substantial risk of serious harm, and
that the defendant was deliberately indifferent to the substantial risk of serious harm. Id. at 834.
In this case, plaintiff has not alleged that any of the defendants were deliberately indifferent to
the risk of harm. Rather, he claims Hubbard was negligent, which does not state a claim under
§ 1983. As a result, plaintiffs allegations fail to state a claim upon which relief can be granted.
Moreover, "[l]iability under § 1983 requires a causal link to, and direct responsibility for,
the alleged deprivation of rights." Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990);
see Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Because vicarious liability is inapplicable to
Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through
the official's own individual actions, has violated the Constitution."); Camberos v. Branstad, 73
F.3d 174, 176 (8th Cir. 1995) ("a general responsibility for supervising the operations of a prison
is insufficient to establish the personal involvement required to support liability."). Plaintiff has
not alleged that any of the defendants besides Hubbard were directly involved in the cell transfer.
So, the complaint is frivolous with regard to defendants Pashia, Crews, Griffith, and Crump.
Finally, the complaint does not state whether defendants are being sued in their official or
individual capacities. 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, in this case
the State of Missouri. Will v. Michigan Dept ofState Police, 491 U.S. 58, 71 (1989). "[N]either
a State nor its officials acting in their official capacity are 'persons' under § 1983."
Consequently, plaintiffs allegations are frivolous for this reason as well.
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
IT IS HEREBY 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-eight (28) days from the date of this Memorandum and Order.·
IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $3.00
within twenty-eight (28) 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 proceeding. 1
IT IS FURTHER ORDERED that if plaintiff does not comply with this Memorandum
and Order, the Court will dismiss this case without further proceedings.
Dated this 27th day of May, 2016.
TED STATES DISTRICT JUDGE
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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