Dunn v. Jacobson et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma. pauperis (Docket No. 2 ) is GRANTED. IT IS FURTHER ORDERED that, within twenty-one (21) days of the date of this Memorandum and Order, plaintiff must p ay an initial filing fee of $4.61. 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) this case number; and ( 4) the statement that the remittance is for an original proceeding. IT IS FURTHER ORDERED that, within twenty-one (21) days of the date of this Memorandum and Order, plaintiff shall submit an amended complaint in accordance with the instructions s et forth herein. IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff a blank Prisoner Civil Rights Complaint form. Plaintiff may request additional forms as needed. If plaintiff fails to timely comply with this Memorandum and Order, the Court will dismiss this action without prejudice and without further notice. Signed by District Judge John A. Ross on 11/16/17. (JAB)(Remark: Copy of Memorandum and Order and Prisoner Civil Rights Complaint form mailed to plaintiff)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GARY DALE DUNN,
Plaintiff,
v.

ZACHARY JACOBSON, et al.,
Defendants.

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No. 4:17-cv-2325-JAR

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff Gary Dale Dunn for leave to
commence this civil action without prepayment of the required filing fee. Having reviewed the
motion and the financial information submitted in support, the Court will grant the motion and
assess an initial partial filing fee of $4.61. See 28 U.S.C. § 1915(b)(l). In addition, for the
reasons discussed below, the Court will direct plaintiff to file an amended complaint.
28 u.s.c. § 1915(b)(l)

Pursuant to 28 U.S.C. § 1915(b)(l), 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 the prisoner's
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.
In support of the instant motion, plaintiff submitted an inmate account statement showing
an average monthly balance of $23. 07. The Court will therefore assess an initial partial filing fee
of $4.61, which is twenty percent of plaintiffs average monthly balance.
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.
Pro se complaints are to be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106
(1976). However, they still must allege sufficient facts to support the claims alleged. Stone v.

Harry, 364 F.3d 912, 914-15 (8th Cir. 2004); see also Martin v. Aubuchon, 623 F.2d 1282, 1286
(8th Cir. 1980) (even pro se complaints are required to allege facts which, if true, state a claim
for relief as a matter of law). Federal courts are not required to "assume facts that are not
alleged, just because an additional factual allegation would have formed a stronger complaint."

Stone, 364 F.3d at 914-15.

In addition, giving a pro se complaint the benefit of a liberal
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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. US., 508 U.S.
106, 113 (1993).
The Complaint

Plaintiff, an inmate at the Washington County Jail, brings this action pursuant to 42
U.S.C. § 1983 against Sheriff Zachary Jacobson, Shannon Thompson, Steven Rion, and Brandon
Thomlinson. He sues each defendant in an official and individual capacity.
Plaintiff states that, when he was booked into the Washington County Jail, he told jail
officials he needed to wear special shoes due to a prior injury, but Rion, Thompson, Jacobson
and Thomlinson said he could not have them and would need to see the doctor about
medications. Plaintiff alleges that he did not receive his medications for three weeks after he
was booked and suffered "several seizures," but "officials" denied him medical attention.
(Docket No. 1 at 5). He alleges that, on or about June 10, 2017, he suffered a seizure and was
given a candy bar and placed on the floor, and then returned to his tank. He states he told
Jacobson, Thompson, and Rion that there were 12 to 15 inmates in a four-man cell, black mold
was present, and there were no towel or hygiene supplies, but "officials" said they were not
required to follow federal rules. Plaintiff concludes that his constitutional rights have been
violated because he was denied medical treatment for health issues, "and the mold in the
Washington County jail and the overcrowding." Id He seeks monetary damages in the amount
of $500,000.
Discussion

As pleaded, the complaint fails to state a claim upon which relief can be granted against
any named defendant. In setting forth his claims, while plaintiff states that he did not receive

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requested medical treatment and was subjected to conditions he believes violate the law, he does
not explain what each named defendant actually did, or failed to do, that violated his rights.
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 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). In order to state an actionable civil rights claim against a defendant, a
plaintiff must set forth specific factual allegations showing what that particular defendant
actually did, or failed to do, that violated the plaintiffs federally-protected rights. See West v.
Atkins, 487 U.S. 42, 48 (1988); see also Ellis v. Norris, 179 F.3d 1078, 1079 (8th Cir. 1999) (a
plaintiff must plead facts showing each named defendant's personal involvement in the alleged
constitutional wrongdoing).
Because plaintiff is proceeding pro se, the Court will allow him to file an amended
complaint. Plaintiff is warned that the amended complaint will completely replace the original.
E.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th
Cir. 2005). Plaintiff must submit the amended complaint on a court-provided form, and the
amended complaint must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure.
In the "Caption" section of the amended complaint, plaintiff must state the frrst and last
name, to the extent he knows it, of each defendant he wishes to sue. Plaintiff should also
indicate whether he intends to sue each defendant in his or her individual capacity, official
capacity, or both. 1
In the "Statement of Claim" section, plaintiff should begin by writing the first
defendant's name. In separate, numbered paragraphs under that name, plaintiff should write the
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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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specific facts that support his claim or claims against that defendant, as well as the constitutional
right or rights that defendant violated. If plaintiff is suing more than one defendant, he should do
the same thing for each one, separately writing each individual defendant's name and, under that
name, in numbered paragraphs, the factual allegations specific to that particular defendant and
the right(s) that defendant violated. Plaintiffs failure to make specific and actionable factual
allegations against any named defendant will result in that defendant's dismissal from this case.
If plaintiff names more than one defendant, he should only include claims that are related

to each other.

See Fed. R. Civ. P. 20(a)(2).

Alternatively, plaintiff may name only one

defendant and set forth as many claims as he has against that defendant. See Fed. R. Civ. P.
18(a).
Accordingly,
IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma
. pauperis (Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that, within twenty-one (21) days of the date of this
Memorandum and Order, plaintiff must pay an initial filing fee of $4.61. 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) this case number; and (4) the statement that the
remittance is for an original proceeding.
IT IS FURTHER ORDERED that, within twenty-one (21) days of the date of this
Memorandum and Order, plaintiff shall submit an amended complaint in accordance with the·
instructions set forth herein.
IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff a blank
Prisoner Civil Rights Complaint form. Plaintiff may request additional forms as needed.

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If plaintiff fails to timely comply with this Memorandum and Order, the Court will

dismiss this action without prejudice and without further notice.
Dated this 16th day ofNovember, 2017.

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