Morrison v. Hale et al

Filing 10

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis (Docket No. 2) is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $35.83 within twenty-one (21) days of the date of thi s 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) the statement that the remittance is for an original proceeding. IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint in accordance with the instructions set forth herein within twenty-one (21) days of the date of this Memorandum and Order. IT IS FURTHER ORDERED that the Cle rk of Court shall mail to plaintiff two blank Prisoner Civil Rights Complaint forms. Plaintiff may request additional forms as needed. If plaintiff fails to timely comply with this Memorandum and Order, the Court may dismiss this action without prejudice and without further notice. 2 ( Response to Court due by 6/7/2017.) Signed by Magistrate Judge Nannette A. Baker on 5/17/17. cc: 2 copies mailed to pltff.(CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HERBERT W. MORRISON, JR.,
Plaintiff,
v.
ANDREW HALE, et al.,
Defendants.

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No. 4:17-cv-875-NAB

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Herbert W. Morrison, Jr., an
inmate at Southeast Correctional Center, for leave to commence this action without prepayment
of the filing fee. The motion will be granted, and 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 his
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 20 percent of the preceding month’s income credited to his 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.

Plaintiff has submitted an affidavit and a certified inmate account statement showing an
average monthly deposit of $179.15, and an average monthly balance of $55.73 The Court will
therefore assess an initial partial filing fee of $35.83, twenty percent of plaintiff’s average
monthly deposit.
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.
This Court is required to liberally construe a pro se complaint. Haines v. Kerner, 404
U.S. 519, 520 (1972).

However, this does not mean that pro se complaints may be merely

conclusory. Even pro se complaints are required to allege facts which, if true, state a claim for
relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980); see also
Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004) (federal courts are not required to “assume
facts that are not alleged, just because an additional factual allegation would have formed a
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stronger complaint”). Giving a pro se complaint the benefit of a liberal construction does not
mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse
mistakes by those who proceed without counsel. See McNeil v. U.S., 508 U.S. 106, 113 (1993).
The Complaint
Plaintiff describes the complaint as a “42 U.S.C. § 1983 complaint for damages for civil
rights violations, 18 U.S.C. § 1030 complaint for damages for unauthorized access to a protected
computer, and complaint in Replevin.” (Docket No. 1 at 1). He names twelve defendants: law
enforcement officers Andrew Hale, Timothy Sweeso, Shawn Reiland, Timothy Green; Steven
Grim, and John Does 1-2; the City of Florissant; Assistant Prosecuting Attorney Ashley BaileySmith; and private citizens Tina Broadway, Robyn Ambs, and Kathleen Pickett. The complaint
spans 53 pages, and contains multiple counts. Plaintiff’s claims appear to relate to events that
happened when he was investigated, arrested and prosecuted for possession and promotion of
child pornography, child molestation, statutory sodomy, statutory rape, and sexual exploitation
of a minor. He seeks monetary damages.
The complaint violates Rule 8(a) of the Federal Rules of Civil Procedure, which requires
(in relevant part) that a complaint to contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” This complaint is far too long, and it brims with irrelevant
and redundant statements, legalese, and conclusory statements. For example, plaintiff begins
Count 1 by writing:
Defendant Sweeso, by trickery, deceit, fraud, unethical practice for a public
official, contrary to his oath of office and in violation of Plaintiff’s right to be free
from unreasonable search and seizure, was the direct and proximate cause of
Plaintiff’s residential property the subject of a warrantless exploratory search
which was general in nature . . . On its face the search appears valid and judicially
impenetrable, however, based on information known by Defendant Sweeso at the
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time of the violation, the consent obtained was not in accordance with the
Constitution.
(Docket No. 1 at 19). In Count 6, plaintiff writes:
As a police officer, Defendant Grimm was sympathetic to the anger emanating
from Defendant Hale by the allegation made by Defendant Hale’s friend and
fellow police officer’s step-daughter, and believing he possessed the intellectual
acuity to successfully conduct and conceal a unconstitutional [sic] search, entered
into the data contents of Disc #20 in contravention to the Fourth Amendment.
(Id. at 28). The complaint also appears to advance claims against multiple defendants related to
different searches, seizures of items, deprivation of the right to confront a witness at trial, and
excessive force, to name a few. Rule 20(a)(2) of the Federal Rules of Civil Procedure governs
joinder of defendants, and provides:
Persons . . . may be joined in one action as defendants if: (A) any
right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and (B) any
question of law or fact common to all defendants will arise in the
action.
Therefore, a plaintiff cannot join, in a single lawsuit, multiple claims against different defendants
related to events arising out of different transactions or occurrences. “Unrelated claims against
different defendants belong in different suits, . . . [in part] to ensure that prisoners pay the
required filing fees - for the Prison Litigation Reform Act limits to 3 the number of frivolous
suits or appeals that any prisoner may file without prepayment of the required fees.” Id. Rule
18(a) of the Federal Rules of Civil Procedure governs joinder of claims, and provides:
A party asserting a claim to relief as an original claim,
counterclaim, cross-claim, or third-party claim, may join, either as
independent or as alternate claims, as many claims, legal,
equitable, or maritime, as the party has against an opposing party.
Therefore, multiple claims against a single defendant are valid.
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Because plaintiff is proceeding pro se, the Court will give him an opportunity to file an
amended complaint. In so doing, plaintiff must follow Rules 8 and 10 of the Federal Rules of
Civil Procedure. Also, he should only include claims that arise out of the same transaction or
occurrence. If plaintiff wants to pursue additional claims that relate to different transactions or
occurrences, he must file each such claim as a new civil action on a separate complaint form, and
either pay the filing fee or file a motion for leave to proceed in forma pauperis. Alternatively,
plaintiff may choose one single defendant and set forth as many claims as he has against him or
her.

Plaintiff must prepare the amended complaint using a Court-provided form.

In the

“Caption” section of the form complaint, plaintiff should write the name of the defendant(s) he
wishes to sue.

In the “Statement of Claim” section, plaintiff should begin by writing the

defendant’s name. In separate, numbered paragraphs under that name, plaintiff should: (1) set
forth the factual allegations supporting his claim against that defendant; (2) state what
constitutional or federal statutory right(s) that defendant violated; and (3) state whether the
defendant is being sued in his/her individual or official capacity. 1 If plaintiff is suing more than
one defendant, he should do the same thing for each one. Plaintiff must file an amended
complaint within twenty-one (21) days of the date of this Memorandum and Order. The filing of
the amended complaint completely replaces the original. E.g., In re Wireless Telephone Federal
Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
(Docket No. 2) is GRANTED.

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The failure to sue a defendant in his or her individual capacity may result in the dismissal of that defendant.

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IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $35.83
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) the statement that the remittance
is for an original proceeding.
IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint in
accordance with the instructions set forth herein within twenty-one (21) days of the date of this
Memorandum and Order.
IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff two blank
Prisoner Civil Rights Complaint forms. Plaintiff may request additional forms as needed.
If plaintiff fails to timely comply with this Memorandum and Order, the Court may
dismiss this action without prejudice and without further notice.
Dated this 17th day of May, 2017.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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