Watkins v. Presson et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motions to proceed in forma pauperis [Doc. # 7 and # 10 ] are GRANTED. IT IS FURTHER ORDERED that no filing fee will be assessed at this time. IT IS FURTHER ORDERED that plaintiffs motions to supplement his complaint [Doc. # 5 and # 6 ] are DENIED. IT IS FURTHER ORDERED that the Clerk is directed to mail to plaintiff a copy of the Court's prisoner civil rights complaint form. IT IS FURTHER ORDERED that plaintiff must f ile an amended complaint on the Court's form within thirty (30) days of the date of this Order. IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court will dismiss this action without prejudice. If the case is dismissed for non- compliance with this Order, the dismissal will not count as a "strike" under 28 U.S.C. § 1915(g). Signed by Magistrate Judge David D. Noce on 7/25/2017. (Copy of Order and Complaint Form Mailed)(CLO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNKNOWN PRESSON, et al.,
No. 4:17-CV-1243 DDN
MEMORANDUM AND ORDER
This matter is before the Court upon the motions of plaintiff (registration no.32957), an
inmate at St. Louis County Justice Center, for leave to commence this action without payment of
the required filing fee [Doc. #7 and #10]. For the reasons stated below, the Court finds that the
plaintiff does not have sufficient funds to pay the entire filing fee and will not assess an initial
partial filing fee at this time. 1 See 28 U.S.C. § 1915(b)(l). Furthermore, after reviewing the
complaint, the Court will order plaintiff submit an amended pleading within thirty (30) days of
the date of this Memorandum and Order.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed in forma
pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from such relief. An action is
frivolous if it "lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319,
328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992).
An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose of
A review of plaintiffs prison account statement shows that he has a negative account balance at
the Justice Center.
vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987),
aff'd 826 F.2d 1059 (4th Cir. 1987). A complaint fails to state a claim if it does not plead
"enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
The Original Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil
Named as defendants are Police Officers Unknown Presson, Unknown Carmen and
Unknown Sullivan. Defendants are named in their official capacities.
Plaintiff asserts that Police Officer Presson violated his constitutional rights by allegedly
"assaulting" him and "striking him" in the face. Plaintiff also asserts that Police Officer Carmen
violated his rights by "assisting Presson in depriving [him] of [his] liberty without due process of
law and assisting [him] with cruel and unusual punishment."
Plaintiff alleges that Police Officer Sullivan "did nothing to enforce [his] rights knowing
that [he] was placed under arrest before the bag was even searched."
He seeks monetary
damages and injunctive relief. 2
In his motions to supplement his complaint [Doc. #5 and 6], plaintiff seeks to add
additional claims and additional defendants to this action.
He has not included a proposed
amended complaint, instead merely filing with the Court "supplemental" documents seeking to
add, by interlineation, his additional claims and parties. Such practices are not proper under the
Federal Rules. See also Popoalii v. Correctional Medical Services, 512 F.3d 488, 497 (8th
It appears that plaintiff's complaint refers to his arrest by Officers Presson, Sullivan and Carmen
on or about July 13, 2016. On that date, plaintiff was charged with felony stealing and resisting
arrest by the Brentwood Police Department. See State v. Watkins, No. 16SL-CR06087-01 (21 51
Judicial Circuit, St. Louis County Court). This action is still pending.
Cir.2008) (finding that it is appropriate to deny leave to amend a complaint when a proposed
amendment was not submitted with the motion).
Federal Rule of Civil Procedure 7 does not contemplate a "supplemental complaint."
Thus, plaintiff will be required to file a full amended complaint in order to amend his pleadings
and his motions to supplement his complaint will be denied. [Doc. #5 and #6].
Plaintiff has sued defendants in their "official capacities." Naming a government official
in his or her official capacity is the equivalent of 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.
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 a government entity, such as the Brentwood
Police Department, was responsible for the alleged violations of plaintiffs constitutional rights.
As a result, the complaint currently fails to state a claim upon which relief can be granted.
Additionally, as plaintiffs complaint is currently written, the only defendant personally
involved in allegedly violating his constitutional rights was Officer Presson, who plaintiff states
unlawfully struck him during the course of his arrest. In order to show liability under § 1983, a
plaintiff must allege that a state actor was directly responsible for an alleged violation of
plaintiffs purported deprivation of rights. See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th
Cir. 1990) ("Liability under § 1983 requires a causal link to, and direct responsibility for, the
alleged deprivation of rights.");see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985)
(claim not cognizable under § 1983 where plaintiff fails to allege defendant was personally
involved in or directly responsible for incidents that injured plaintiff); Boyd v. Knox, 47 F .3d
966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in§ 1983 suits). As a result,
even if plaintiff had made allegations against the defendants in their individual capacities, he has
not clearly alleged personal responsibility for an Eighth Amendment violation on behalf of
Officers Carmen and Sullivan.
Last, to the extent plaintiff alleges that he was falsely arrested by any of the alleged
defendants, these claims may, in fact, need to be stayed during the pendency of his underlying
state criminal action pursuant to the case of Wallace v. Kato, 549 U.S. 384 (2007).
In Wallace v. Kato, the United States Supreme Court held that "the statute of limitations
upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment,
where the arrest is followed by criminal proceedings, begins to run at the time the claimant is
detained pursuant to legal process." Wallace, 549 U.S. at 397. The Court observed that "[f]alse
arrest and false imprisonment overlap; the former is a species of the latter." Id. at 388.
The Supreme Court instructed that where "a plaintiff files a false arrest claim before he
has been convicted ... it is within the power of the district court, and in accord with common
practice, to stay the civil action until the criminal case or the likelihood of a criminal case is
ended." Id. at 393-94. Otherwise, the court and the parties are left to "speculate about whether a
prosecution will be brought, whether it will result in conviction, and whether the impending civil
action will impugn that verdict, all this at a time when it can hardly be known what evidence the
prosecution has in its possession." Id. at 393 (internal citation omitted).
Given that plaintiff's claims are subject to dismissal as currently claimed, and because it
is unclear exactly what claims plaintiff is attempting to bring against Officer Sullivan, the Court
will allow plaintiff to amend his complaint on a court-provided form. Plaintiff has thirty (30)
days from the date of this Order to file an amended complaint in accordance with the specific
instructions set forth here.
All claims in the action must be included in one, centralized
complaint form. See Fed. R. Civ. P. 7(a)(l), 8(a).
Additionally, plaintiff is warned that the filing of an amended complaint replaces
the original complaint and all previously-filed pleadings, so plaintiff 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.
Id. The allegations in the complaint must show how each and every defendant is directly
responsible for the alleged harms. 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 subject to dismissal.
All of plaintiffs claims should be clearly set forth in the "Statement of Claim." If
plaintiff fails to file an amended complaint on the Court's form within thirty (30) days and in
compliance with the Court's instructions, the Court will dismiss this action without prejudice and
without further notice.
IT IS HEREBY ORDERED that plaintiffs motions to proceed in forma pauperis [Doc.
#7 and #10] are GRANTED.
IT IS FURTHER ORDERED that no filing fee will be assessed at this time.
IT IS FURTHER ORDERED that plaintiffs motions to supplement his complaint
[Doc. #5 and #6] are DENIED.
IT IS FURTHER ORDERED that the Clerk is directed to mail to plaintiff a copy of the
Court's prisoner civil rights complaint form.
IT IS FURTHER ORDERED that plaintiff must file an amended complaint on the
Court's form within thirty (30) days of the date of this Order.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court
will dismiss this action without prejudice. If the case is dismissed for non-compliance with this
Order, the dismissal will not count as a "strike" under 28 U.S.C. § 1915(g).
this-~ 5" ~y of July, 2017.
DAVID D. NOCE
UNITED STATES MAGISTRATE JUDGE
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