Bennett et al v. Lowery et al
MEMORANDUM AND ORDER:IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis (Docket No. 2 ) is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 within twenty-one (21) day s of the date of this Order. Plaintiff is instructed to make her remittance payable to Clerk, United States District Court, and to include upon it: (1) her name; (2) her prison registration number; (3) the case number; and (4) the statement that t he remittance is for an original proceeding. IT IS FURTHER ORDERED that plaintiff shall have until March 8, 2017, to submit an amended complaint in accordance with the instructions set forth above. Plaintiff is cautioned that her failure to timely comply will result in the dismissal of this action without prejudice and without further notice. Signed by District Judge Carol E. Jackson on 2/6/2017. (CLO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
TIMOTHY J. LOWERY, et al.,
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Taylor Bennett, a federal
prisoner, for leave to commence this action without prepayment of the required filing fee.
(Docket No. 2). For the reasons stated below, the Court finds that plaintiff lacks sufficient funds
to pay the entire filing fee, and will assess an initial partial filing fee of $1.00. In addition,
plaintiff will be given the opportunity 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 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 twenty percent of the preceding month’s income credited to her 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 $10.00,
until the filing fee is fully paid. Id.
In support of the instant motion, plaintiff submitted an inmate account statement that
shows an average monthly balance of $5.17. The Court will therefore assess an initial partial
filing fee of $1.00, twenty percent of her average monthly balance.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), 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, inter alia, draw upon judicial
experience and common sense. Id. at 679.
Plaintiff pleaded guilty to federal charges that included mail fraud, aggravated identity
theft, and possession of stolen mail. She brings this action pursuant to 42 U.S.C. § 1983 against
eight individuals and one municipality, asserting that they violated her rights under the Fourth,
Fifth, and Fourteenth Amendments. Plaintiff’s claims stem from events that occurred before,
during, and after her arrest.
Plaintiff does not specify the capacity in which she sues the individual defendants. When
a complaint is silent as to the capacity in which a person is being sued, a 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
defendant in his or her official capacity is the equivalent of naming the entity that employs the
defendant. Will v. Michigan Dep=t of State Police, 491 U.S. 58, 71 (1989). When the employer
is a government entity, the plaintiff must allege that some official policy or custom is responsible
for the alleged constitutional violation. Monell v. Dep=t of Social Services, 436 U.S. 658, 690-91
(1978). No such allegations appear in the complaint. However, the Court believes that these
deficiencies can be cured by amending the complaint. Because plaintiff is proceeding pro se, she
will be given an opportunity to file an amended complaint on a court-provided form in
accordance with the specific instructions set forth below.
Plaintiff must include all of her claims in one, centralized complaint form. The Court
will not search through supplemental and prior pleadings in order to piece together plaintiff=s
claims, nor will it require the defendants to do so. As such, plaintiff is warned that the filing
of an amended complaint replaces the original complaint and all previously-filed pleadings
and supplements. See, e.g., In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922,
928 (8th Cir. 2005). Any claims from the original complaint, supplements, and/or pleadings
that are not included in the amended complaint will be deemed abandoned and will not be
considered. Id. Plaintiff is advised that the amended complaint will replace the original
complaint and will be the only pleading this court reviews. Id. As to each individual
defendant named in the amended complaint, plaintiff must state whether she is suing that
defendant in his or her official capacity, individual capacity, or both.
In the "Caption" section of the amended complaint, plaintiff must state the name of each
defendant she wishes to sue.
In the "Statement of Claim" section, plaintiff should begin by
writing the first defendant=s name. In separate, numbered paragraphs under the name, plaintiff
should (1) set forth in the allegations supporting his claim(s) against that defendant, as well as
the constitutional right(s) that she claims that defendant violated and (2) state the capacity in
which the defendant is being sued. Plaintiff should then proceed in the same manner with each
of the remaining defendants.
The amended complaint must contain short and plain statements showing that plaintiff is
entitled to relief.
The allegations must be simple, concise, and direct, and the numbered
paragraphs must each be limited to a single set of circumstances. If plaintiff needs more space,
she may attach additional sheets of paper to the amended complaint. No exhibits are to be
attached to the amended complaint.
Plaintiff must sign the amended complaint before
returning it to the Court for filing.
Plaintiff is reminded that she is required to submit her amended complaint on a courtprovided form, and the amended complaint must comply with Rules 8 and 10 of the Federal
Rules of Civil Procedure. After receiving the amended complaint, the Court will review it
pursuant to 28 U.S.C. ' 1915. Plaintiff=s failure to make specific and actionable allegations
against a defendant will result in the dismissal of this case against that defendant. If plaintiff
fails to file an amended complaint in accordance with the Court’s instructions, this action will be
dismissed without prejudice and without further notice.
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 within
twenty-one (21) days of the date of this Order. Plaintiff is instructed to make her remittance
payable to “Clerk, United States District Court,” and to include upon it: (1) her name; (2) her
prison registration number; (3) the case number; and (4) the statement that the remittance is for
an original proceeding.
IT IS FURTHER ORDERED that plaintiff shall have until March 8, 2017, to submit
an amended complaint in accordance with the instructions set forth above.
Plaintiff is cautioned that her failure to timely comply will result in the dismissal of
this action without prejudice and without further notice.
Dated this 6th day of February, 2017.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
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