Perkins v. City of St. Louis et al

Filing 9

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 4 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $16.00 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 a n original proceeding. IT IS FURTHER ORDERED that the Clerk is directed to send plaintiff a prisoner civil rights complaint form. IT IS FURTHER ORDERED that plaintiff shall have until March 29, 2017 to file an amended complaint on the court-provid ed form. Plaintiff is advised that failure to comply with this Order may result in dismissal of this action. ( Amended/Supplemental Pleadings due by 3/29/2017.). Signed by District Judge Carol E. Jackson on 3/7/2017. (CLO)(Copy of Order and Complaint Form Mailed to Plaintiff)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TIMOTHY PERKINS,

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Plaintiff,
v.
CITY OF ST. LOUIS, et al.,
Defendants.

No. 4:17-CV-408 CEJ

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 $16.00, which is twenty percent of
his average monthly deposit. See 28 U.S.C. § 1915(b). Additionally, the Court will
require plaintiff to submit an amended complaint.
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.
The Complaint
Plaintiff is a prisoner confined in the St. Louis Medium Security Institution
(MSI). In the complaint he describes a litany of conditions in the facility that are
unsanitary and unsafe.

Among other things, plaintiff alleges that he has been

bitten by a brown recluse spider and exposed to black mold which made him sick.
Plaintiff asserts that he has received insufficient treatment for his medical
problems.

Plaintiff also alleges that he burned his hand while working in the

kitchen because of unsafe conditions.

According to plaintiff, the kitchen is

condemned, and inmates are served food out of trash cans.
Plaintiff brings this action against the City of St. Louis; Corizon, Inc.; Jeffery
Carson, Superintendent; Dale Glass, Commissioner; and C.B.M. Managed Services
(C.B.M.) which allegedly manages the kitchen and food service at MSI.
Discussion
Plaintiff does not state whether he is suing the defendants 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

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naming the government entity that employs the official. Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 (1989).
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.
Social Services, 436 U.S. 658, 690-91 (1978).

Monell v. Dep’t of

The instant complaint does not

contain any allegations that a policy or custom of a government entity was
responsible for the alleged violations of plaintiff’s constitutional rights. As a result,
the complaint is frivolous with respect to the plaintiff’s municipal liability claims
against the City of St. Louis and his official capacity claims against Jeffery Carson
and Dale Glass.
To state a claim for medical mistreatment, plaintiff must plead facts sufficient
to indicate a deliberate indifference to serious medical needs. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Camberos v. Branstad, 73 F.3d 174, 175 (8th Cir. 1995).
Allegations of mere negligence in giving or failing to supply medical treatment will
not suffice.

Estelle, 429 U.S. at 106.

In order to show deliberate indifference,

plaintiff must allege that he suffered objectively serious medical needs and that
defendants actually knew of but deliberately disregarded those needs.

Dulany v.

Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). In order to state a claim against
Corizon, plaintiff must allege that there was a policy, custom or official action that
caused an actionable injury. Sanders v. Sears Roebuck & Co., 984 F.2d 972, 95-76
(8th Cir. 1993). Plaintiff has not alleged that Corizon’s official policies or customs
caused him to be denied medical care. Therefore, his allegations against Corizon
fail to state a claim upon which relief can be granted.

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Finally, to hold C.B.M. liable, plaintiff must also allege that its official policy
or custom led to his hand injury. Id. He has not made any such allegations.
Because plaintiff is proceeding pro se, the Court will allow him to file an
amended complaint.

The amended complaint must be submitted on a court-

provided complaint form. All of the plaintiff’s claims and all defendants being sued
must be set forth in the 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.
Plaintiff is advised 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 that were asserted in the original complaint but are not included in the
amended complaint will be deemed abandoned and will not be considered. Id.
In the "Caption" section of the amended complaint, plaintiff must state the
name 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 the name, plaintiff should (1) set forth in the factual allegations
supporting his claim(s) against that defendant, as well as the constitutional right(s)
that he claims that defendant violated and (2) state whether the defendant is being
sued in his/her individual capacity, official capacity, or both. 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

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circumstances. Plaintiff must sign the amended complaint before returning it to the
Court for filing. The amended complaint must comply with Rules 8 and 10 of the
Federal Rules of Civil Procedure.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [ECF No. 4] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of
$16.00 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 send plaintiff a
prisoner civil rights complaint form.
IT IS FURTHER ORDERED that plaintiff shall have until March 29, 2017 to
file an amended complaint on the court-provided form.
Plaintiff is advised that failure to comply with this Order may result
in dismissal of this action.
Dated this 7th day of March, 2017.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Prisoners must pay the full amount of the $350.00 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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