Edwards v. McSwain et al

Filing 6

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis 2 is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $29.00 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 proce eding. IT IS FURTHER ORDERED that the Clerk is directed to send plaintiff a prisoner civil rights complaint form. IT IS FURTHER ORDERED that plaintiff must file an amended complaint within twenty-one (21) days of the date of this Order. If plaintiff does not comply with this Order, the Court will dismiss this action without further proceedings. Signed by Magistrate Judge Shirley Padmore Mensah on 8/11/17. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LAWRENCE M. EDWARDS,
Plaintiff,
v.
ELLIS MCSWAIN, et al.,
Defendants.

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No. 4:17-CV-2179 SPM

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 $29.00, which is twenty percent of his average monthly deposit. See 28
U.S.C. § 1915(b). Additionally, plaintiff must file 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 alleges that defendants retaliated against him for filing grievances by delaying
his entry into Phase II of the Missouri Sexual Offender Program. As a result of the delay, his
conditional release date has been moved from February 2017 to August 2018.
Discussion
The complaint is tediously lengthy. It contains far too many irrelevant allegations that
have no relation to the actions of the defendants. Rule 8 of the Federal Rules of Civil Procedure
requires that a complaint contain “a short and plain statement of the claim showing that
[plaintiff] is entitled to relief . . .” The complaint does not comply with the Rule, and therefore,
the Court will require plaintiff to submit an amended complaint.
To state a prima facie case for First Amendment retaliation, plaintiff must allege that he
engaged in protected activity and that defendants, to retaliate for the protected activity, took
adverse action against him that would chill a person of ordinary firmness from engaging in that
activity. See Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004), cert. denied, 546 U.S. 860
(2005). Plaintiff must limit his allegations to the requirements of stating a prima facie case of
retaliation. And he must show how each defendant was personally responsible for the alleged
violations of his rights.
If plaintiff does not comply with this Order, the Court will dismiss this action. See
Micklus v. Greer, 705 F.2d 314, 317 n. 3 (8th Cir. 1983).

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Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $29.00
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 must file an amended complaint within
twenty-one (21) days of the date of this Order.
If plaintiff does not comply with this Order, the Court will dismiss this action
without further proceedings.
Dated this 11th day of August, 2017.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE

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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