United States District Court, E.D. Missouri, Northern Division
JAMES M. SCOTT, Plaintiff,
DR. UNKNOWN NWAOBASI, et al., Defendants.
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court upon the request of plaintiff
James M. Scott for leave to commence this action without
payment of the required filing fee. 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 $3.10. See 28
U.S.C. § 1915(b)(1). In addition, plaintiff will be
ordered to submit an 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 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 Court each time the amount
in the prisoner's account exceeds $10, until the filing
fee is fully paid. Id.
with the instant motion and affidavit in support, plaintiff
submitted a notarized “resident funds inquiry”
form that shows his institution account activity for the
six-month period preceding the filing of the complaint. A
review of plaintiff's account shows an average monthly
balance of $19.91. Based upon this information, the Court
will require plaintiff to pay an initial partial filing fee
of $3.98, which is twenty percent of his average monthly
balance. 28 U.S.C. § 1915(b)(1).
U.S.C. § 1915(e)
to 28 U.S.C. § 1915(e)(2)(B), the Court must 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). 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. Spencer v.
Rhodes, 656 F.Supp. 458, 461-63 (E.D. N.C. 1987),
aff'd 826 F.2d 1059 (4th Cir. 1987). 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).
brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights. Named as defendants are
Corizon Medical Services and two individual defendants: Dr.
Nwaobasi and Nurse Boiling. Plaintiff alleges that he
underwent blood testing in October of 2014 that revealed that
he was diabetic, but he was not informed of that diagnosis
until he became very ill in August of 2015. Plaintiff seeks
$50, 000.00 in damages from each defendant.
the individual defendants, the complaint is silent as to
whether they are being sued in their official or individual
capacities. Where a “complaint is silent about the
capacity in which [plaintiff] is suing defendant, [a district
court must] interpret the complaint as including only
official-capacity claims.” Egerdahl v. Hibbing
Community College, 72 F.3d 615, 619 (8th Cir. 1995);
Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989).
Naming an official in his or her official capacity is the
equivalent of naming the entity that employs the official.
Will v. Michigan Dep't of State Police, 491 U.S.
58, 71 (1989). To state a claim against an official in his or
her official capacity, plaintiff must allege that a policy or
custom of his or her employer is responsible for the alleged
constitutional violation. Monell v. Dep't of Social
Services, 436 U.S. 658, 690-91 (1978). The instant
complaint contains no allegations that a policy or custom of
Corizon was responsible for the alleged violation of
plaintiff's constitutional rights. As a result, the
complaint fails to state a claim upon which relief can be
granted with respect to the individual defendants. Similarly,
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). The instant complaint contains no such allegations,
and it therefore fails to state a claim against Corizon.
plaintiff is proceeding pro se, the Court will allow him to
file an amended complaint. Plaintiff is warned that the
filing of an amended complaint replaces the original
complaint, and so he must include all claims he wishes to
bring in the amended complaint. E.g., In re
Wireless Telephone Federal Cost Recovery Fees
Litigation, 396 F.3d 922, 928 (8th Cir. 2005). It is not
enough to simply state that the defendants failed to provide
adequate medical care; plaintiff must set forth specific
facts showing how each and every defendant is directly
responsible for the alleged harm. In order to sue a defendant
in his or her individual capacity, plaintiff must
specifically say so in the complaint If plaintiff fails to
sue a defendant in his or her individual capacity, this
action may be subject to dismissal as to that defendant
IT IS HEREBY ORDERED that plaintiffs motion to proceed in
forma pauperis (Docket No. 2) is GRANTED.
FURTHER ORDERED that the plaintiff must pay an initial filing
fee of $3.98 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