United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court upon review of the file. On
September 22, 2016, this Court ordered plaintiff to show
cause why this action should not be dismissed due to his
failure to comply with previous Court orders to pay the
initial partial filing fee. On October 3, 2016, plaintiff
submitted a response. This Court will grant plaintiff an
additional thirty days to pay the initial partial filing fee,
and will also dismiss this action pursuant to 28 U.S.C.
U.S.C. § 1915(e)(2)(B)
to 28 U.S.C. § 1915(e)(2)(B), the Court shall
dismiss a complaint filed in forma pauperis if the action is
frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a
defendant who is immune from such relief. An action is
frivolous if it ''lacks an arguable basis in either
law or fact.'' Neitzke v. Williams, 490 U.S.
319, 328 (1989); Denton v. Hernandez, 504 U.S. 25,
31 (1992). A complaint fails to state a claim 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). An action is
malicious if it is undertaken for the purpose of harassing
the named defendants and not for the purpose of vindicating a
cognizable right. Spencerv.Rhodes, 656 F.Supp. 458,
461-63 (E.D. N.C. 1987), aff'd826 F.2d 1059 (4th
determine whether an action fails to state a claim upon which
relief can be granted, the Court must engage in a two-step
inquiry. First, the Court must identify the allegations in
the complaint that are not entitled to the assumption of
truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950-51
(2009). These include “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of
action [that are] supported by mere conclusory
statements.” Id. at 1949. Second, the Court
must determine whether the complaint states a plausible claim
for relief. Id. at 1950-51. This is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 1950. The plaintiff is required
to plead facts that show more than the “mere
possibility of misconduct.” Iqbal, 129 S.Ct.
at 1950. The Court must review the factual allegations in the
complaint “to determine if they plausibly suggest an
entitlement to relief.” Id. at 1951.
filed his original complaint in this Court on November 30,
2015. On that same date, plaintiff filed a motion for leave
to proceed in forma pauperis. On December 7, 2015, The Court
noted that plaintiff had failed to submit the financial
information required by 18 U.S.C. § 1915(a)(2), and
ordered him to submit it within thirty days. On December 31,
2015, plaintiff submitted a response explaining problems he
was experiencing obtaining the financial information,
the Court granted him an extension of time to March 1, 2016.
(Doc. 7). On March 3, 2016, plaintiff submitted the required
information, and the Court granted his motion for leave to
proceed in forma pauperis and ordered him to pay an initial
partial filing fee of $1.70. The Court also noted that the
complaint failed to indicate that plaintiff had exhausted his
prison administrative remedies and failed to make specific
and actionable allegations against each named defendant, and
ordered him to file an amended complaint. In that Order, the
Court specifically instructed plaintiff that the amended
complaint must contain a short and plain statement showing he
was entitled to relief. Plaintiff sought and was granted
additional time to comply with that Order.
August 19, 2016, plaintiff filed an amended complaint, but
did not pay the initial partial filing fee. The Court ordered
him to show cause why his case should not be dismissed due to
his failure to do so, and on October 3, 2016, plaintiff
submitted a response written in a threatening tone. (Docket
No. 18). In that response, plaintiff wrote that he had
“responded to this inferior Court each time, ”
accused the Court of intentionally delaying his case, and
accused the presiding judge of engaging in various forms of
deceitful and wrongful behavior, including having
inappropriate relationships with people at the prison.
Plaintiff made other disparaging remarks about the judge, and
stated that he was going to “spread the word
about” her. (Id. at p. 1-2, 4, 6). Regarding
his non-payment of the filing fee, plaintiff wrote that it
was the state's fault, and then wrote: “Got
it??!” (Id. at 5).
amended complaint is very long and vociferous. It is
comprised of little more than profanity and graphic language.
For example, in describing having received
“unconstitutional clothing, ” plaintiff wrote:
“They got me f**k-up for bi**h or a soft a**
mother***ker to think I'm a that s**t . . . these bi**hs
need to die or get they ass wumped for real!!” (Docket
No. 16 at 31). The amended complaint also referred to one of
the individual defendants as a bi**h and crazy, and described
her as: “overweight, tall, no eyebrows, ‘spooky
wide eye, ' med late 50 aged, female: she looks and comes
off to all who meet her as ‘someone out of a supsence
[sic] book (villainous character) has a complex with
authority and relationships as it comes to my full knowledge
and awareness that I am the only (male) inmate she
(fixationally) [sic] had a fixation on” . . .
she has ‘stalker' written all over her.”
(Id. at 38).
is before the Court in forma pauperis, meaning the Court has
a duty to dismiss the case at any time if the court
determines that fails to state a claim upon which relief can
be granted, is frivolous, or malicious. 28 U.S.C. §
1915(e)(2). Upon consideration, the Court determines that the
amended complaint is subject to dismissal because it fails to
state a claim upon which relief can be granted, and also
because it is malicious.
complaint 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.''
Twombly, 550 U.S. at 570. Corizon can be held liable
in a lawsuit such as this only for its unconstitutional
policies or practices. It cannot be held liable for the
actions of its employees under a theory that employers are
responsible for the actions of their employees. Burke v.
North Dakota Dept. of Corr. & Rehab., 294 F.3d 1043,
1044 (8th Cir. 2002). In other words, Corizon is liable here
only if it had a “policy, custom, or official action
that inflicted an actionable injury.” Johnson v.
Hamilton, 452 F.3d 967, 973 (8th Cir. 2006). Here,
because the amended complaint fails to allege that Corizon
had a policy, custom, or official action that inflicted an
actionable injury, it fails to state a claim against Corizon.
Regarding the individual defendants, the amended complaint
contains little more than legal conclusions, it often refers
to the defendants collectively, and it fails to convey a
short and plain statement showing a plausible claim for
relief. It therefore fails to state a claim for relief
against the individual defendants.
amended complaint is also subject to dismissal because it is
malicious. A court may determine that an action or allegation
is malicious by considering the “totality of the
writing” including objective factors such as the
circumstances and history surrounding the complaint, the tone
of the allegations, and whether the complaint alleges facts
which are probative and vital to the life of the lawsuit.
Spencer, 656 F.Supp. at 463; see also Cochran v.
Morris, 73 F.3d 1310, 1316 (4th Cir. 1996) (when
determining whether an action is malicious, the Court need
not look only to the complaint itself, but may also look to
plaintiff's other litigious conduct). An action is
malicious when it is undertaken for the purpose of harassing
litigants and not for the purpose of ...