Arman v. Davis et al

Filing 8

MEMORANDUM AND ORDER -....IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis is GRANTED. [Doc. 2] IT IS FURTHER ORDERED that plaintiff's motion to proceed in forma pauperis is DENIED as moot. [Doc. 6]IT I S FURTHER ORDERED that plaintiff's motion to amend is DENIED. [Doc. 5] 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 $1.00....IT IS FURTHER ORDERED that, within twenty-one (21) days of the date of this Memorandum and Order, plaintiff shall file 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. IT IS FURTHER ORDERED that if plaintiff fails to timely file an amended complaint, the Court will dismiss this action wi thout prejudice and without further notice as to all defendants except for defendant Jason Davis in his individual capacity. IT IS FURTHER ORDERED that if plaintiff fails to timely pay the initial filing fee of $1.00, the Court will di smiss this entire action without prejudice and without further notice for failure to comply with the Courts orders. ( Initial Partial Filing Fee due by 10/20/2017., Response to Court due by 10/20/2017.). Signed by District Judge Charles A. Shaw on 9/29/2017. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANDREW ARMAN,
Plaintiff,
v.
JASON DAVIS, et al.,
Defendants.

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No. 4:17-CV-2360 CAS

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff Andrew Arman, an inmate at
Southeast Correctional Center, for leave to proceed in forma pauperis in this civil action, filed
pursuant to 42 U.S.C. § 1983. (Docket No. 2). 1 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 or
her 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

1

Plaintiff filed the instant motion on September 1, 2017. On September 27, 2017, plaintiff filed a second
motion for leave to proceed in forma pauperis. (Docket No. 6). Because the Court has determined to grant the first
motion, the second motion will be denied as moot.

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 the instant motion, plaintiff avers that he receives $5.00 per month in income. He did
not include a certified copy of his inmate account statement for the six month period
immediately preceding the filing of the complaint. However, he did file a letter explaining that
he had tried to obtain the required statement, but unnamed prison officials refused to give it to
him. The Court will therefore assess an initial partial filing fee of $1.00, which is twenty percent
of plaintiff’s stated monthly income and an amount this Court determines is reasonable. See
Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the
Court with a certified copy of his prison account statement, the Court should assess an amount
“that is reasonable, based on whatever information the court has about the prisoner’s finances.”).
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, among other things, draw upon judicial
experience and common sense. Id. at 679.

2

When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit
of a liberal construction. 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 stronger complaint”). In addition, affording 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 filed the instant complaint on September 1, 2017. Named as defendants are
Jason Davis, Ham Payne Fum, Cindy Griffith, and Alan Earls. Plaintiff sues all defendants in
their official and individual capacities.
Plaintiff alleges that, on January 16, 2017, Davis and other officers assaulted him, and
Davis struck him in the face with a closed fist. Plaintiff also alleges that Griffith told him his
past behavior was to blame. Plaintiff alleges he was denied medical attention, and he includes a
narrative describing mental anguish, hardship, and retaliatory acts by unnamed individuals. He
sets forth no factual allegations regarding Fum or Earls. He seeks monetary damages.
After filing the instant complaint, plaintiff filed a motion to amend. The motion to
amend states that plaintiff wished to amend his complaint to include an additional four
defendants, whom he names. Plaintiff states that the facts are included in the “initial argument.”
(Docket No. 5). He did not attach a copy of a proposed amended complaint.

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Discussion
While plaintiff’s allegations survive initial review as to Davis in his individual capacity, 2
it fails to state a claim upon which relief can be granted as to all other defendants in their
individual capacities. Plaintiff’s allegation that Griffith told him his past behavior was to blame
does not state a claim of constitutional dimension. See Burton v. Livingston, 791 F.2d 97, 99
(8th Cir. 1986) (“mere words, without more, do not invade a federally protected right.”). In
addition, while plaintiff names Fum and Earls as defendants, he does not set forth facts that
explain what they did to violate his constitutional rights. See Krych v. Hvass, 83 F. App’x 854,
855 (8th Cir. 2003) (affirming dismissal of pro se complaint against defendants who were merely
listed as defendants in the caption and there were no allegations of constitutional harm against
them).
Plaintiff has clearly indicated to the Court that he wishes to amend his complaint, and the
Court will give him the opportunity to do so. However, plaintiff is advised that his motion to
amend will be denied because plaintiff did not attach a copy of a proposed amended complaint.
Plaintiff is advised that he cannot amend his complaint by filing motions or letters asking to
change parts of the original complaint. Instead, plaintiff must file a fully completed amended
complaint.
Plaintiff must file an amended complaint within twenty-one (21) days of the date of this
Memorandum and Order. The amended complaint will completely replace the original, and so it
must include all claims plaintiff wishes to bring. E.g., In re Wireless Telephone Federal Cost

2

Plaintiff brings this action against all defendants, employees of the Missouri Department of Corrections, in
their official and individual capacities. Naming a government official in his or her official capacity is the equivalent
of naming the government entity that employs the official, in this case the State of Missouri. See Will v. Michigan
Dep=t of State Police, 491 U.S. 58, 71 (1989). “[N]either a State nor its officials acting in their official capacity are
‘persons’ under ' 1983.” Id. As a result, the complaint is legally frivolous as to all defendants in their official
capacities.

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Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). Plaintiff must prepare the amended
complaint on a Court-provided form, and it 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 first and last
name, to the extent he knows it, of each defendant he wants to sue. Plaintiff should also indicate
whether he intends to sue each defendant in his or her individual capacity, official capacity, or
both. 3
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
facts about what that particular defendant did to violate his rights. 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 facts about what that
defendant did to violate his rights. Plaintiff’s failure to make specific and actionable factual
allegations against any defendant will result in that defendant’s dismissal from this case.
Finally, plaintiff should only include claims that arise from the same transaction or
occurrence or, in other words, claims that are related to each other. See Fed. R. Civ. P. 20(a)(2).
In the alternative, plaintiff may choose one single defendant and set forth as many claims as he
has against that defendant. See Fed. R. Civ. P. 18(a).
If plaintiff fails to timely file an amended complaint, the Court will dismiss this action
without prejudice and without further notice as to all defendants except for defendant Jason
Davis in his individual capacity.

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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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Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis is
GRANTED. [Doc. 2]
IT IS FURTHER ORDERED that plaintiff’s motion to proceed in forma pauperis is
DENIED as moot. [Doc. 6]
IT IS FURTHER ORDERED that plaintiff’s motion to amend is DENIED. [Doc. 5]
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 $1.00. 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, within twenty-one (21) days of the date of this
Memorandum and Order, plaintiff shall file 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.
IT IS FURTHER ORDERED that if plaintiff fails to timely file an amended complaint,
the Court will dismiss this action without prejudice and without further notice as to all
defendants except for defendant Jason Davis in his individual capacity.

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IT IS FURTHER ORDERED that if plaintiff fails to timely pay the initial filing fee of
$1.00, the Court will dismiss this entire action without prejudice and without further notice for
failure to comply with the Court’s orders.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 29th day of September, 2017.

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