United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
M. BODENHAUSEN MAGISTRATE JUDGE
matter is before the Court upon the motions of plaintiff
James Smalley for leave to commence this action without
prepayment of the required filing fee. (Docket Nos. 10 and
17). For the reasons stated below, the Court finds that
plaintiff does not have sufficient funds to pay the entire
filing fee, and will assess an initial partial filing fee of
$1.00. See 28 U.S.C. § 1915(b)(1).
Additionally, the Court finds that the manner in which
plaintiff drafted the amended complaint makes it impossible
to review, and the Court will order plaintiff to file a
second amended complaint.
U.S.C. § 1915(b)(1)
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 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 Court each time the amount
in the prisoner's account exceeds $10, until the filing
fee is fully paid. Id.
support of his motions for leave to proceed in forma
pauperis, plaintiff submitted an uncertified account
statement from the Missouri Department of Corrections,
Offender Financial Services, along with a letter explaining
difficulties he believed he had experienced in obtaining it.
(Docket No. 6). Therefore, the Court will require plaintiff
to pay an initial partial filing fee of $1.00, an amount that
is reasonable based on the financial information he provided.
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.”). If plaintiff is unable to pay the initial
partial filing fee, he must submit a certified copy of his
prison account statement in support of such claim.
U.S.C. § 1915(e)(2)
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
draw on its judicial experience and common sense.
Id. at 679.
finding the original complaint (Docket No. 1/filed April 8,
2016) to be defective, this Court granted plaintiff leave to
file an amended complaint. Plaintiff sought and was granted
two extensions of time in which to file an amended complaint.
The amended complaint plaintiff ultimately filed is drafted
in such a manner that it is impossible for the Court to
review it pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff
used the Court-provided form for a portion of his amended
complaint, but he removed the section entitled
“Statement of Claim” and submitted a 91-page,
handwritten document which he titled “Prisoner Civil
Rights Complaint Under U.S.C. § 1983, ” which is a
very long, rambling document full of legal conclusions.
(Docket No. 16, Attach. 1, docketed as “Memorandum in
Support of Amended Complaint”). The Court therefore
determines that the amended complaint fails to comply with
Rules 8 or 10 of the Federal Rules of Civil Procedure.
Because plaintiff is proceeding pro se, the Court will
provide plaintiff an opportunity to file a second amended
complaint containing all of the allegations he wishes to
bring against defendants. All of plaintiff's claims in
this action must be included in one, centralized complaint
form. Plaintiff must follow the Court's instructions
relating to the filing of his second amended complaint, as
set forth below, or he will face dismissal of his action,
is required to submit a second amended complaint on a
court-provided form, and it must comply with Rules 8 and 10
of the Federal Rules of Civil Procedure. Rule 8(a) requires
that a complaint contain a short and plain
statement of the claim showing that the pleader is entitled
to relief, and a demand for the relief sought. Rule 10(b)
requires that a party must state his claims in separately
numbered paragraphs, each limited as far as practicable to a
single set of circumstances.
must also name the defendants against whom he is pursuing
allegations, and clearly identify each defendant by name and
title, as far as he knows it. Plaintiff must also articulate,
for each named defendant, the specific facts about
that defendant's alleged wrongful conduct.
Plaintiff's failure to make specific and actionable
allegations against any defendant will result in that
defendant's dismissal from this case. Plaintiff must also
specify the capacity in which he is suing each defendant,
whether it is in his or her official or individual capacity,
or both. See Monell v. Department of Social
Services, 436 U.S. 658, 690-91 (1978).
shall have twenty-one (21) days from the date of this Order
to file a second amended complaint. Plaintiff is warned that
the filing of the second amended complaint
completely replaces the original
and the amended complaint, and claims that are not re-alleged
are deemed abandoned. E.g., In re Wireless Telephone
Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928
(8th Cir. 2005). If plaintiff fails to file a second amended
complaint within twenty-one (21) days of the date of this
Order, the Court will dismiss this action without prejudice.
Plaintiff will not be granted any additional extensions of
plaintiff files a second amended complaint, this Court will
review it pursuant to 28 U.S.C. § 1915 for
frivolousness, maliciousness and/or failure to state a claim.
A claim and/or defendant must survive ' 1915 review in
order for plaintiff to proceed thereon in this lawsuit.
IT IS HEREBY ORDERED that plaintiff's
motions to proceed in forma pauperis (Docket Nos. 10 and 17)
IS FURTHER ORDERED that the plaintiff must pay an
initial filing fee of $1.00 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 ...