Hoeft v. Lombardi et al
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 $1.50 within thirty (30) days of the date of this Or der. Plaintiff is instructed to make his remittancepayable 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. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. An Order of Dismissal will be filed separately. 2 Signed by District Judge Jean C. Hamilton on 10/3/16. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
GEORGE LOMBARDI, et al.,
No. 4:16-CV-494 JCH
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 $1.50, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, this action is dismissed under 28 U.S.C. § 1915(e).
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, 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.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
During the time relevant to the complaint, plaintiff was confined in the Eastern Reception
Diagnostic and Correctional Center. Defendants are George Lombardi, Director of the Missouri
Department of Corrections; Matthew Downs, Corrections Officer; Travis Wapler (or Wampler),
Corrections Officer; and Renee Neel, Sergeant.
Plaintiff alleges that defendants Downs, Wapler, and Neel “just ran in [his] room and
began to assault [him]” because his cell window was covered. They put him on a security bench,
and plaintiff says Neel tried to push his head onto his lap. He claims he “was denied medical
When the Court ordered plaintiff to submit an amended complaint, it specifically
instructed him how to state a claim for relief. It directed him to state in separate paragraphs how
each defendant individually violated his rights. And it ordered him to state in which capacity he
intended to sue each defendant. It also informed plaintiff that if he failed to follow the Court’s
instructions, that the case would be dismissed without further notice.
Plaintiff did not follow the Court’s directions. As a result, the complaint does not state a
claim upon which relief can be granted. 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.”); Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995)
(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.”); Will v. Michigan
Dep=t of State Police, 491 U.S. 58, 71 (1989) (State officials are immune from suit in their
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 $1.50
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 this action is DISMISSED without prejudice.
An Order of Dismissal will be filed separately.
Dated this 3rd day of October, 2016.
\s\ Jean C. Hamilton
UNITED 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).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?