Ward et al v. Payne et al

Filing 10

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma pauperis (Docket No. #3 ) is GRANTED.IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $1.50 within thirty (30) 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 plaintiffs motion for appointment of counsel (Docket No. #2 ) is DENIED at this time.IT IS FURTHER ORDERED that Morris Williamss motion to withdraw (Docket No. #9 ) is DENIED AS MOOT.IT IS FURTHER ORDERED that the Clerk of Court shall send to plaintiff a copy of the Courts prisoner civil rights complaint form.IT IS FURTHER ORDERED that plaintiff shall filed an amended complaint on the Court form within thirty (30) days of the date of this order, in accordance with the instructions set forth above.IT IS FURTHER ORDERED that if plaintiff fails to file an amended complaint within thirty (30) days, this action will be dismissed without prejudice and without further notice.IT IS FURTHER ORDERED that upon receipt of plaintiffs amended complaint, the Court will review it pursuant to 28 U.S.C. 1915. (cc: mailed the plaintiff a copy of the Courts prisoner civil rights complaint form.)( Amended/Supplemental Pleadings due by 10/11/2020., Initial Partial Filing Fee due by 10/11/2020.). Signed by Magistrate Judge Shirley Padmore Mensah on 09/11/2020. (AAT)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEVIN WARD,
Plaintiff,
v.
STANLEY PAYNE, et al.,
Defendants.

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No. 4:20-cv-01093-SPM

MEMORANDUM AND ORDER
This matter comes before the Court on the motion of plaintiff Kevin Ward for leave to
commence this civil action without prepayment of the required filing fee. (Docket No. 3). Having
reviewed the motion and the financial information submitted in support, the Court has determined
that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial partial filing
fee of $1.50. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court
will direct plaintiff to file an amended complaint on a Court-provided form, setting forth only his
own claims.
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 six-month
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 the Court each time the amount in the prisoner’s account exceeds $10.00,
until the filing fee is fully paid. Id.
In support of his motion for leave to proceed in forma pauperis, plaintiff submitted a copy
of his certified inmate account statement. (Docket No. 4). The account statement shows an average
monthly deposit of $7.50. The Court will therefore assess an initial partial filing fee of $1.50,
which is 20 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 under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief,
which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
“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 upon judicial experience and common sense. Id. at 679. The
court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber, 820
F.3d 958, 964 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73
(8th Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not
required to “accept as true any legal conclusion couched as a factual allegation”).
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). A “liberal construction”

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means that if the essence of an allegation is discernible, the district court should construe the
plaintiff’s complaint in a way that permits his or her claim to be considered within the proper legal
framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, 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) (stating that 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. United States, 508 U.S. 106, 113 (1993).
Background
Plaintiff is a self-represented litigant who is currently incarcerated at the Eastern Reception,
Diagnostic, and Correctional Center in Bonne Terre, Missouri. On August 18, 2020, plaintiff
jointly filed a civil action with inmate Morris Williams pursuant to 42 U.S.C. § 1983. (Docket No.
1). Along with the complaint, plaintiff filed a motion for appointment of counsel and a motion for
leave to proceed in forma pauperis. (Docket No. 2; Docket No. 3). Both motions were signed by
plaintiff, but not by Morris Williams.
The complaint named Warden Stanley Payne, Functional Unit Manager Ted Eaton, and
CCM II Sara Miller as defendants. In the complaint, plaintiff alleged that he had requested
protective custody, but had instead been placed in administrative segregation, resulting in a denial
of certain privileges. (Docket No. 1 at 6). The complaint also contained similar allegations by
Morris Williams.

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On August 24, 2020, the Court struck Morris Williams from the complaint, and had a new
prisoner civil rights case opened for him. (Docket No. 6). Subsequently, Williams filed a motion
to withdraw from the case. (Docket No. 9).
Discussion
As noted above, this case originated when plaintiff and another inmate filed a joint prisoner
civil rights complaint pursuant to 42 U.S.C. § 1983. Because the complaint contains claims by
both plaintiff and the second inmate, plaintiff will be directed to file an amended complaint on a
Court-form that includes only his own claims. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th
Cir. 1985) (explaining that a plaintiff must allege a personal loss).
A. Amendment Instructions
Plaintiff should type or neatly print his amended complaint on the Court’s civil rights form,
which will be provided to him. See E.D. Mo. L.R. 2.06(A) (“All actions brought by selfrepresented plaintiffs or petitioners should be filed on Court-provided forms”). If the amended
complaint is handwritten, the writing must be legible. In the “Caption” section of the Courtprovided form, plaintiff should clearly name each and every party he is intending to sue. See Fed.
R. Civ. P. 10(a) (“The title of the complaint must name all the parties”). If there is not enough
room in the caption, plaintiff may add additional sheets of paper. However, all the defendants must
be clearly listed. Plaintiff should fill out the complaint form in its entirety. Plaintiff is advised that
he can only bring claims on behalf of himself, and cannot bring claims on behalf of other prisoners.
In the “Statement of Claim” section, plaintiff should provide a short and plain statement of
the factual allegations supporting his claim. See Fed. R. Civ. P. 8(a). Plaintiff should put each
claim into a numbered paragraph, and each paragraph should be “limited as far as practicable to a
single set of circumstances.” See Fed. R. Civ. P. 10(b).

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The amended complaint should only include claims that arise out of the same transaction
or occurrence. In other words, plaintiff should only include claims that are related to each other.
See Fed. R. Civ. P. 20(a)(2). Alternatively, plaintiff may choose a single defendant and set forth
as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a).
In structuring his amended complaint, plaintiff should begin by writing the defendant’s
name. In separate, numbered paragraphs under that name, plaintiff should write a short and plain
statement of the factual allegations supporting his claim against that specific defendant. If plaintiff
is suing more than one defendant, he should follow the same procedure for each defendant.
Plaintiff must specify whether he intends to sue each defendant in an official capacity, an
individual capacity, or both. The failure to sue a defendant in his or her individual capacity may
result in the dismissal of that defendant.
If plaintiff is suing a defendant in an individual capacity, he is required to allege facts
demonstrating the personal responsibility of the defendant for harming him. See Madewell v.
Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (stating that § 1983 liability “requires a causal link
to, and direct responsibility for, the deprivation of rights”). Furthermore, the Court emphasizes
that the “Statement of Claim” requires more than “labels and conclusions or a formulaic recitation
of the elements of a cause of action.” See Neubauer v. FedEx Corp., 849 F.3d 400, 404 (8th Cir.
2017).
If plaintiff is suing multiple defendants, it is important that he establish the responsibility
of each separate defendant for harming him. That is, for each defendant, plaintiff must allege facts
showing how that particular defendant’s acts or omissions violated his constitutional rights. It is
not enough for plaintiff to make general allegations against all the defendants as a group. Rather,
plaintiff needs to provide the role of each named defendant in this case, in order that each specific

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defendant can receive notice of what he or she is accused of doing. See Topchian v. JPMorgan
Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (stating that the essential function of a
complaint “is to give the opposing party fair notice of the nature and basis or grounds for a claim”).
Plaintiff is warned that the filing of an amended complaint completely replaces the
original complaint. This means that claims that are not re-alleged in the amended complaint will
be deemed abandoned. See In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928
(8th Cir. 2005) (“It is well-established that an amended complaint supercedes an original complaint
and renders the original complaint without legal effect”).
After receiving the amended complaint, the Court will review it pursuant to 28 U.S.C. §
1915. Plaintiff’s failure to make specific factual allegations against a defendant will result in the
dismissal of that defendant. If plaintiff fails to file an amended complaint on a Court-provided
form within thirty (30) days in accordance with the instructions set forth herein, the Court will
dismiss this action without prejudice and without further notice to plaintiff.
B. Motion to Appoint Counsel
Plaintiff has filed a motion to appoint counsel. (Docket No. 2). In civil cases, a pro se
litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721
F.3d 940, 942 (8th Cir. 2013). See also Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998)
(stating that “[a] pro se litigant has no statutory or constitutional right to have counsel appointed
in a civil case”). Rather, a district court may appoint counsel in a civil case if the court is
“convinced that an indigent plaintiff has stated a non-frivolous claim…and where the nature of the
litigation is such that plaintiff as well as the court will benefit from the assistance of counsel.”
Patterson v. Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether to appoint
counsel for an indigent litigant, a court considers relevant factors such as the complexity of the

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case, the ability of the pro se litigant to investigate the facts, the existence of conflicting testimony,
and the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cty. Jail, 437
F.3d 791, 794 (8th Cir. 2006).
After reviewing these factors, the Court finds that the appointment of counsel is not
warranted at this time. Plaintiff has demonstrated, at this point, that he can adequately present his
claims to the Court. Additionally, neither the factual nor the legal issues in this case appear to be
complex. Finally, the Court is directing plaintiff to file an amended complaint. The Court will
entertain future motions for appointment of counsel as the case progresses, if appropriate.
C. Motion to Withdraw
Morris Williams has filed a motion to withdraw from this case. (Docket No. 9). As
discussed above, Williams has already been stricken from this action, and a new civil action
opened for him. See Williams v. Payne, et al., No. 4:20-cv-1132-SEP (E.D. Mo. Aug. 24, 2020).
Because Williams is no longer a party to the instant action, his motion to withdraw will be denied
as moot.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis
(Docket No. 3) is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $1.50
within thirty (30) 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.

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IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (Docket
No. 2) is DENIED at this time.
IT IS FURTHER ORDERED that Morris Williams’s motion to withdraw (Docket No.
9) is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Clerk of Court shall send to plaintiff a copy of the
Court’s prisoner civil rights complaint form.
IT IS FURTHER ORDERED that plaintiff shall filed an amended complaint on the Court
form within thirty (30) days of the date of this order, in accordance with the instructions set forth
above.
IT IS FURTHER ORDERED that if plaintiff fails to file an amended complaint within
thirty (30) days, this action will be dismissed without prejudice and without further notice.
IT IS FURTHER ORDERED that upon receipt of plaintiff’s amended complaint, the
Court will review it pursuant to 28 U.S.C. § 1915.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 11th day of September, 2020.

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