O'Neal v. Dormire et al
Plaintiff is hereby ordered to file an Amended Complaint which more clearly and concisely sets out the claims that plaintiff is asserting against which defendants. After the Court has reviewed the Amended Complaint, the Court will make a final determ ination as to the sufficiency of plaintiff's Complaint. Plaintiff shall file his Amended Complaint on or before November 28, 2016. If plaintiff fails to file an Amended Complaint by this deadline, this action will be dismissed without prejudice and without further notice. The Clerk of the Court is directed to send a copy of this Order to plaintiff at the address listed in the Order. Signed on 10/27/2016 by District Judge Fernando J. Gaitan, Jr. (Rosa, Patricia)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
JEFFREY J. O’NEAL,
) No. 16-00865-CV-W-FJG
MISSOURI DEPT. OF CORRECTIONS, ET AL., )
Currently pending before the Court is plaintiff=s Motion for Leave to Proceed In
Forma Pauperis (Doc. # 1).
In reviewing plaintiff's in forma pauperis application, the Court is also obligated to
review the plaintiff's Complaint. Pursuant to 28 U.S.C. ' 1915, this Court may authorize
the commencement or prosecution of any suit without prepayment of fees when an
applicant files an affidavit stating that they are unable to pay the costs of the lawsuit. In
Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir. 1982), the court noted:
There is a two step process to be followed by the district court in
considering whether a pro se plaintiff should be permitted to proceed in
forma pauperis. First, a determination of whether the plaintiff qualifies by
economic status under ' 1915(a) and, if so, to permit the complaint to be
filed. Second, a determination of whether the cause of action stated in the
complaint is, under ' 1915([e]), frivolous or malicious and, if so, to dismiss
In Patterson v. Kaiser, No. 4:14-CV-1255-CDP, 2014 WL 4715453 (E.D.Mo.
Sept. 22, 2014), the Court stated:
An action is frivolous if “it lacks an arguable basis in either law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a
claim upon which relief can be granted 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). In reviewing a pro se complaint under
§1915 (e)(2)(b), the Court must give the complaint the benefit of a liberal
construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court
must also weigh all factual allegations in favor of the plaintiff, unless the
facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32
Id. at * 1.
In his two hundred and twenty-three page Complaint, plaintiff alleges in part:
This is a civil action complaint being brought under Title 42 of the
United States Code §1983 for the violation of civil, constitutional violations
of rights and liberties guaranteed by the United States Constitution, inter
alia; rights of man and humane decency and treatment of others, toward
others under the International Declaration of Human Rights, governed by
the United Nations General Assembly.
My complaint is that the Missouri State Department of Corrections fails
to treat incarcerated persons with dignity, human kindness, decency,
being forever growing in mental abuse, torturous, demeanative in nature!
In a retaliatory act of aggression, abuse of power, violating my 14th
Amendment to the U.S. Constitution, . . .failed intentionally to allow myself
to call and speak to my terminal, last parent, before my father pass’d
away, Sept. 21, 2015; taking also the last chance I’ll ever have to ever
hearing my father’s voice again. Now I cannot; due to my defendants’
policy of inmates on disciplinary action in segregation; believed to be
unhumane, inhumane, a serious shock to my conscience and my families,
others who I’ve told about this.
(Plaintiff’s Complaint, pp. 8-9).
In reviewing the remainder of plaintiff’s extensive Complaint, it is clear that he has
attached additional documents to the Complaint, such as a Motion for Appointment of
Counsel, First Request for Production of Documents, Request for Discovery and various
other exhibits. It has been difficult for the Court to sift through the lengthy Complaint, to
ferret out exactly what claims plaintiff is alleging against which defendants. Accordingly,
the Court finds that it would be beneficial for plaintiff to file an Amended Complaint,
which is limited to only those claims which he is asserting in this action. Plaintiff shall
clearly and concisely set out the facts relevant to his claim in separate counts and state
which claims he is asserting against which defendants. Plaintiff shall include all of his
claims in one, centralized complaint. In the “Caption” section of the Amended
Complaint, plaintiff shall list the name of each defendant he wishes to sue. In the
“Statement of Claim” section, plaintiff shall write the first defendant’s name. In separate,
numbered paragraphs, under the name, plaintiff shall set fort the allegations supporting
his claim(s) against that defendant, as well as the specific constitutional right(s) that he
claims that defendant violated and whether that defendant is being sued in his/her
official and/or individual capacity. Plaintiff should then proceed in the same manner with
each of the remaining defendants.
The Amended Complaint must contain short and plain statements showing that
plaintiff is entitled to relief. The allegations must be simple, concise, and direct and the
numbered paragraphs must be limited to a single set of circumstances. Plaintiff shall
not attach any exhibits to the Amended Complaint. Plaintiff must also sign the
Amended Complaint before filing it with the Court. Plaintiff shall submit his 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. Plaintiff shall also not include
any additional motions within the body of the Complaint. If plaintiff wishes to file
additional motions, such as a Motion for Appointment of Counsel, those motions shall
be filed as separate documents. Additionally, discovery documents or requests for
discovery are not to be filed with the Court. Plaintiff may find it useful to review the
resources for pro se parties contained on the Court’s website:
Plaintiff is also warned that the filing of an Amended Complaint replaces the
original complaint and all previously filed pleadings. Any claims from the original
complaint, that are not included in the Amended Complaint, will be deemed abandoned
and will not be considered. Plaintiff is also advised that the Amended Complaint will
replace the original complaint and will be the only pleading the Court reviews.
Accordingly, plaintiff is hereby ordered to file an Amended Complaint which more
clearly and concisely sets out the claims that plaintiff is asserting against which
defendants. After the Court has reviewed the Amended Complaint, the Court will make
a final determination as to the sufficiency of plaintiff's Complaint. Plaintiff shall file his
Amended Complaint on or before November 28, 2016. If plaintiff fails to file an
Amended Complaint by this deadline, this action will be dismissed without prejudice and
without further notice.
The Clerk of the Court is hereby directed to send a copy of this Order to plaintiff
at the address listed below:
Jeffrey J. O’Neal
2376 Hwy A
Moberly, Missouri 65270
Date: October 27, 2016
Kansas City, Missouri
S/ FERNANDO J. GAITAN JR.
Fernando J. Gaitan Jr.
United States District Judge
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