Scott v. Nwaobasi et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis (Docket No. 2 ) is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $3.98 within thirty (30) days of the d ate 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. IT IS FURTHER ORDERED that the Clerk is directed to mail to plaintiff a copy of the Court's prisoner civil rights complaint form. IT IS FURTHER ORDERED that plaintiff must file an amended complaint within thirty (30) day s from the date of this Order. IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court may dismiss this action without further proceedings. Signed by District Judge John A. Ross on 10/12/2016. (CLO) (Copy of Order and Complaint form mailed to Plaintiff).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
JAMES M. SCOTT,
Plaintiff,
v.
DR. UNKNOWN NWAOBASI, et al.,
Defendants.

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No. 4:16CV966 JAR

MEMORANDUM AND ORDER
This matter is before the Court upon the request of plaintiff James M. Scott for leave to
commence this action without payment of the required filing fee. For the reasons stated below,
the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will
assess an initial partial filing fee of $3.10. See 28 U.S.C. § 1915(b)(1). In addition, plaintiff will
be ordered to submit an amended complaint.
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 or
her 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 sixmonth period. 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. 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.

Along with the instant motion and affidavit in support, plaintiff submitted a notarized
“resident funds inquiry” form that shows his institution account activity for the six-month period
preceding the filing of the complaint. A review of plaintiff's account shows an average monthly
balance of $19.91. Based upon this information, the Court will require plaintiff to pay an initial
partial filing fee of $3.98, which is twenty percent of his average monthly balance. 28 U.S.C. §
1915(b)(1).
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court must 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 from a defendant who is immune from such relief. An action is
frivolous if it Alacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319,
328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose of
vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987),
aff=d 826 F.2d 1059 (4th Cir. 1987). A complaint fails to state a claim if it does not plead
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil
rights. Named as defendants are Corizon Medical Services and two individual defendants: Dr.
Nwaobasi and Nurse Boiling. Plaintiff alleges that he underwent blood testing in October of
2014 that revealed that he was diabetic, but he was not informed of that diagnosis until he
became very ill in August of 2015. Plaintiff seeks $50,000.00 in damages from each defendant.
Discussion

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Regarding the individual defendants, the complaint is silent as to whether they 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 an official in his or her
official capacity is the equivalent of naming the entity that employs the official.

Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). To state a claim against an official in
his or her official capacity, plaintiff must allege that a policy or custom of his or her employer is
responsible for the alleged constitutional violation. Monell v. Dep=t of Social Services, 436 U.S.
658, 690-91 (1978). The instant complaint contains no allegations that a policy or custom of
Corizon was responsible for the alleged violation of plaintiff=s constitutional rights. As a result,
the complaint fails to state a claim upon which relief can be granted with respect to the
individual defendants. Similarly, Corizon can be held liable in a lawsuit such as this only for its
unconstitutional policies or practices. It cannot be held liable for the actions of its employees
under a theory that employers are responsible for the actions of their employees. Burke v. North
Dakota Dept. of Corr. & Rehab., 294 F.3d 1043, 1044 (8th Cir. 2002). In other words, Corizon
is liable here only if it had a “policy, custom, or official action that inflicted an actionable
injury.” Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006). The instant complaint contains
no such allegations, and it therefore fails to state a claim against Corizon.
Because plaintiff is proceeding pro se, the Court will allow him to file an amended
complaint. Plaintiff is warned that the filing of an amended complaint replaces the original
complaint, and so he must include all claims he wishes to bring in the amended complaint.
E.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th
Cir. 2005). It is not enough to simply state that the defendants failed to provide adequate

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medical care; plaintiff must set forth specific facts showing how each and every defendant
is directly responsible for the alleged harm. In order to sue a defendant in his or her
individual capacity, plaintiff must specifically say so in the complaint. If plaintiff fails to
sue a defendant in his or her individual capacity, this action may be subject to dismissal as
to that defendant.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
(Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $3.98
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
proceeding.
IT IS FURTHER ORDERED that the Clerk is directed to mail to plaintiff a copy of the
Court’s prisoner civil rights complaint form.
IT IS FURTHER ORDERED that plaintiff must file an amended complaint within
thirty (30) days from the date of this Order.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court
may dismiss this action without further proceedings.
Dated this 12th day of October, 2016.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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