Mullins v. Lisenbe et al

Filing 14

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff shall, within twenty-one (21) days of the date of this Order, submit a second amended complaint in accordance with the instructions set forth herein. If plaintiff fails to timely comply, the Court will dismiss this action without prejudice and without further notice. Response to Court due by 4/13/2017. Signed by District Judge Catherine D. Perry on 3/23/17. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STEVEN MULLINS,
Plaintiff,
v.
RICHARD LISENBE, et al.,
Defendants.

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No. 4:16-cv-1615-CDP

MEMORANDUM AND ORDER
This matter is before the Court upon review of the amended complaint filed by plaintiff
Steven Mullins. Plaintiff is proceeding herein pro se and in forma pauperis.
Plaintiff initially commenced this action jointly with another inmate, purporting to bring
claims on behalf of other prisoners. See Owen v. Lisenbee, No. 4:16-cv-1567-AGF (E.D. Mo.
filed September 30, 2016) (hereafter “Owen v. Lisenbee”). On October 17, 2016, after noting
that multiple prisoners may not join together in a single lawsuit, the Owen v. Lisenbee Court
struck plaintiff from that action and opened the instant action as a new civil case, and plaintiff
was given the opportunity to submit an amended complaint.
Plaintiff then filed an amended complaint. Therein, he alleges that the overcrowding of
the Phelps County Jail is unconstitutional and causes deprivation of basic human needs such as
food, exercise, sufficient and sanitary restroom/shower facilities, sufficient recreation areas and
outside recreation, and also causes heightened stress and frustration. Plaintiff also alleges that
there is no opportunity to attend religious services.

He seeks declaratory, injunctive, and

monetary relief, and he asks this Court to order his release.

Throughout most of the amended complaint, plaintiff once again purports to bring
claims on behalf of others. For example, regarding his allegations of overcrowded conditions
leading to deprivation of food, plaintiff alleges that during supper on September 18, 2016 “we”
received two meat sandwiches but only one condiment, and “we” were informed that condiments
were being rationed. (Docket No. 10 at 8). Elsewhere, plaintiff claims that the overcrowded
conditions result in a lack of storage space “for anyone housed in the pod,” that the dining
facilities are so crowded that “twenty (20) people must stand to eat,” that due to a lack of bunk
space “twenty (20) persons sleep on the floor,” and that there are so few toilets that there is a
long wait time. (Id. at 9-10). Plaintiff lacks standing to bring claims alleging mistreatment of
other inmates. Instead, plaintiff must allege a personal loss. See Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985). Further, plaintiff is not an attorney and is not authorized to assert
constitutional claims on behalf of others. See 28 U.S.C. § 1654.
In addition, while plaintiff states that the defendants denied him opportunities to
participate in religious services and to exercise, he provides no details regarding when such
deprivations began or how long they lasted. Finally, while plaintiff sues the defendants in their
individual capacities, he fails to clearly explain how each defendant is personally responsible for
the alleged constitutional violations. Instead, plaintiff appears to allege defendants are liable to
him because they held administrative or supervisory positions. See Martin, 780 F.2d at 1334
(claim not cognizable under § 1983 where plaintiff fails to allege the personal responsibility of
defendant); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory
inapplicable in § 1983 cases). In recognition of plaintiff’s pro se status, he will be given the
opportunity to submit a second amended complaint.
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In the second amended complaint, plaintiff should avoid attempting to bring claims on
behalf of other inmates. Instead, he should set forth the manner in which he believes the
defendants violated his constitutional rights. In the “Caption” section of the second amended
complaint, plaintiff should write the first and last name, to the extent he knows it, of each
defendant he wishes to sue. In the “Statement of Claim” section, plaintiff should begin by
writing the first defendant’s name. In separate, numbered paragraphs under that name, plaintiff
should (1) set forth the allegations supporting his claim or claims against that defendant, as well
as the constitutional right or rights he claims that defendant is personally responsible for
violating; and (2) state whether the defendant is being sued in his/her individual capacity or
official capacity.

Plaintiff should then proceed in that same manner for each remaining

defendant.
In so doing, plaintiff must set forth short and plain statements of his claim or claims,
showing that he is entitled to relief. Plaintiff should not include long narratives, repetitive
assertions, irrelevant material, or generalized, conclusory statements. Instead, plaintiff should
very specifically set forth the “who, what, when, and where” of the facts of his claim or claims.
All of plaintiff’s claims must be included in a single complaint form. Plaintiff must not
include exhibits, correspondence, or memoranda.
Plaintiff is cautioned that the filing of the second amended complaint completely
replaces the amended complaint, and claims that are not re-alleged are deemed abandoned. See
In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir.
2005).
Accordingly,
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IT IS HEREBY ORDERED that plaintiff shall, within twenty-one (21) days of the date
of this Order, submit a second amended complaint in accordance with the instructions set forth
herein.
If plaintiff fails to timely comply, the Court will dismiss this action without prejudice and
without further notice.
Dated this 23rd day of March, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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