Mosley v. Fatoki, et al

Filing 5

MEMORANDUM AND ORDER - 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 $42 within twenty-one (21) days of the dat e 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 issue process on defendants Dr. Unknown Fatoki, L. Miller, and Barbara Odem. IT IS FURTHER ORDERED that the Court will hold this action in abeyance with regard to de fendant Melissa Unknown. IT IS FURTHER ORDERED that defendant Gary Stolzer is DISMISSED without prejudice. IT IS FURTHER ORDERED that plaintiff's motion to supplement [ECF No. 4] is GRANTED. The Clerk is directed to change defendant Dr. Unknown Katoka's name to Dr. Unknown Fatoki. An Order of Partial dismissal will be filed separately. Signed by District Judge E. Richard Webber on January 27, 2017. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL B. MOSELY,
Plaintiff,
v.
DR. UNKNOWN FATOKI, et al.,
Defendants.

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No. 4:17-CV-17 ERW

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 $42, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b).
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.
Discussion
Plaintiff alleges he has severe dental problems that the medical defendants have refused
to treat. He alleges Sheriff Gary Stolzer denied his grievances and failed to investigate the issue.
The Court finds that process should be issued on defendants Dr. Unknown Fatoki, L.
Miller, and Barbara Odem. The Court cannot issue process on defendant Melissa Unknown at
this time, because it must have her last name to effectuate service. However, the Court will not
dismiss defendant Melissa Unknown at this time. Plaintiff may attempt to learn her last name if
and when the Court authorizes discovery.
“Liability 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.”); George v.
Smith, 507 F. 3d 605, 609 (7th Cir. 2007) (“Only persons who cause or participate in the
[constitutional] violations are responsible.

Ruling against a prisoner on an administrative

complaint does not cause or contribute to the violation.”). Plaintiff has not alleged defendant

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Stolzer’s direct involvement in the denial of his medical care. As a result, the Court will dismiss
Stolzer without prejudice.
Accordingly,
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 $42
within twenty-one (21) 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 the Clerk is directed to issue process on defendants
Dr. Unknown Fatoki, L. Miller, and Barbara Odem.
IT IS FURTHER ORDERED that the Court will hold this action in abeyance with
regard to defendant Melissa Unknown.
IT IS FURTHER ORDERED that defendant Gary Stolzer is DISMISSED without
prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion to supplement [ECF No. 4] is
GRANTED. The Clerk is directed to change defendant Dr. Unknown Katoka’s name to Dr.
Unknown Fatoki.

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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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An Order of Partial dismissal will be filed separately.
So Ordered this 27th day of January, 2076.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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