Kozik v. Saint Francois County Jail et al

Filing 5

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. # 3 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $10.22 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 remittanc e is for an original proceeding. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint in this action within thirty (30) days of the date of this Memorandum and Order. IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a P risoner Civil Rights Complaint form. IT IS FURTHER ORDERED that if plaintiff fails to comply with this Memorandum and Order, plaintiff's action will be dismissed, without prejudice. Signed by District Judge Catherine D. Perry on 2/16/2017. (Order and Complaint form mailed to Plaintiff at Saint Francois County Jail this date.)(CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JUSTIN MICHAEL KOZIK,
Plaintiff,
v.
ST. FRANCOIS COUNTY JAIL, et al.,
Defendants.

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No. 4:17-CV-151 CDP

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 $10.22.1 Additionally, plaintiff will be required to amend his complaint
because as currently written, it fails to state a claim upon which relief may be granted.
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

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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. After payment of the initial partial filing fee, the prisoner is required to
make monthly payments 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. See 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. A review of plaintiff’s account
indicates an average monthly deposit of $61.33, and an average monthly balance of $36.23.
Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an
initial partial filing fee of $10.22, which is 20 percent of plaintiff’s average monthly deposit.

“[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.
The Complaint
Plaintiff, an inmate at St, Francois County Jail, brings this action pursuant to 42 U.S.C. §
1983 alleging violations of his civil rights. Named as defendants are: the St. Francois County
Jail, as well as two nurses at the jail, Tracy Francois and Heather Unknown.
Plaintiff claims that during his incarceration in the St. Francois County Jail he has
suffered from a cyst, or boil, on both his left buttock as well as on his chest area. Plaintiff
complains that he has sought medical treatment for both areas of pain and that although he has
been given some treatment by defendants, these boil areas still remain painful and oozing blood
and pus. Plaintiff believes that the areas need to be surgically drained, but he claims that
defendants have not offered any surgical services to him. Plaintiff believes that defendants have
not done enough to provide the right medical care and services for him.
Plaintiff has also alleged that the Jail lacks proper legal services.
Plaintiff seeks medical relief, as well as compensatory and punitive damages.

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Discussion
To the extent that plaintiff is attempting to assert an access-to-the-courts claim pursuant
to the First Amendment, the complaint is legally frivolous. Plaintiff does not claim that he has
suffered "actual prejudice with respect to contemplated or existing litigation,” which is a
requirement of an access to courts claim. See Lewis v. Casey, 518 U.S. 343, 348 (1996); Myers v.
Hundley, 101 F.3d 542, 544 (8th Cir. 1996).
Additionally, plaintiff’s complaint does not state whether the individual nurse defendants
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 a government
official in his or her official capacity is the equivalent of naming the government entity that
employs the official, in this case St. Francois County.
To state a claim against a municipality or a government official in his or her official
capacity, plaintiff must allege that a policy or custom of the government entity is responsible for
the alleged constitutional violation. Monell v. Dep’t of Social Services, 436 U.S. 658, 690-91
(1978). The instant complaint does not contain any allegations that a policy or custom of St.
Francois County was responsible for the alleged violations of plaintiff’s constitutional rights. As
a result, the complaint fails to state a claim upon which relief can be granted with respect to
Nurse Tracy Francois and Nurse Heather Unknown.2

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Additionally, plaintiff has not stated that he was denied a specific treatment by each of the
nurses on a specific date which resulted in a denial of his constitutional rights under the Eighth
Amendment. “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
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Moreover, plaintiff’s claims against the St. Francois County Jail are legally frivolous
because the Jail cannot be sued. See Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82
(8th Cir. 1992) (departments or subdivisions of local government are “not juridical entities
suable as such.”).
In spite of the aforementioned, because plaintiff is proceeding pro se, the Court will allow
plaintiff to file an amended complaint on a Court form. Plaintiff shall have thirty (30) days from
the date of this Order to file an amended complaint in accordance with the specific instructions
set forth herein. All claims in an action must be included in one, centralized complaint form, as
neither the Court nor defendants wish to search through supplemental and prior pleadings in
order to piece together plaintiff’s claims.
As such, plaintiff is warned that the filing of an amended complaint replaces the original
complaint and all previously-filed pleadings, and so he must include each and every one of the
claims he wishes to pursue in the amended complaint. See, e.g., In re Wireless Telephone
Federal Cost Recovery Fees Litigation, 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.3 Id. If plaintiff wishes to sue
defendants in their individual capacities, plaintiff must specifically say so in the amended
complaint. If plaintiff fails to sue defendants in their individual capacities, this action may be

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.”).
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Plaintiff should not attach any photographs to his amended complaint. Any “evidentiary
materials” such as those he filed with his original complaint should be exchanged with
defendants in the discovery process and should not be provided to the Court. However, if
plaintiff wishes to attach copies of his IRRs and/or any grievances or grievance responses to his
amended complaint he may do so.
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subject to dismissal. All of plaintiff’s claims should be clearly set forth in the “Statement of
Claim.” If plaintiff fails to file an amended complaint on a Court form within thirty days in
accordance with the Court’s instructions, the Court will dismiss this action without prejudice and
without further notice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [Doc.
#3] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $10.22
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.4
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint in this
action within thirty (30) days of the date of this Memorandum and Order.
IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a Prisoner Civil
Rights Complaint form.

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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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IT IS FURTHER ORDERED that if plaintiff fails to comply with this Memorandum
and Order, plaintiff’s action will be dismissed, without prejudice.
Dated this 16th day of February, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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