United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of plaintiff
Lowell Milner for the appointment of counsel, which was
accompanied by a proposed amended complaint. (Docket No. 6).
Plaintiff will be ordered to file a second amended complaint.
September 12, 2016, plaintiff filed his original complaint in
this Court, apparently attempting to allege that he was
denied health care. Named as defendants were Corizon, the
Missouri Department of Corrections, and three individual
physicians. In the complaint, plaintiff stated that he had
several severe health conditions, referred to the defendants
collectively, and concluded that they had denied him health
care. Plaintiff did not specify the capacity in which he was
suing the defendants.
October 3, 2016, the Court noted that the complaint failed to
state a claim upon which relief could be granted, and ordered
plaintiff to file an amended complaint. In that order, the
Court instructed that plaintiff must state the capacity in
which he was suing the defendants, and also that he must set
forth specific facts demonstrating how each individual
defendant contributed to the alleged violation or violations
of his constitutional rights. On October 17, 2016, plaintiff
responded by filing the instant motion, accompanied by a
proposed amended complaint.
amended complaint contains the same defects of the first: it
fails to state whether plaintiff is suing the defendants in
their individual capacities, their official capacities, or
both, it refers to the defendants collectively, and otherwise
merely contains bare assertions with no factual enhancement.
More specifically, the amended complaint names as defendants
the Missouri Department of Corrections, Corizon, Dr. Karen
Duberstein, Dr. Winklemeyer, and Dr. Haq. Plaintiff states
that he has several severe chronic health conditions, that
"they (DOC and Corizon)" have him on 17 different
drugs and refuse to tell him what "they" are
treating him for, and that his "personal outside
physician" recommended a medical treatment regime but
"they are not following instruction!!" (Amended
Complaint at p. 6).
plaintiff is proceeding pro se, the Court will allow him to
file a second amended complaint. Plaintiff must include all
claims he wishes to bring in the second amended complaint,
because the filing of a second amended complaint replaces the
original complaint and the amended complaint. E.g., In re
Wireless Telephone Federal Cost Recovery Fees
Litigation, 396 F.3d 922, 928 (8th Cir. 2005).
insufficient to refer to the defendants collectively and
conclude that they violated his constitutional rights or
failed to provide medical care. Plaintiff must set forth
specific facts showing how each and every defendant is
directly responsible for the alleged harm.
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
"Caption" section of the second amended complaint,
plaintiff must state the first and last name, to the extent
he knows it, of each defendant he wishes to sue. In the
"Statement of Claim" section, plaintiff should
begin by writing the first defendant's name. In separate,
numbered paragraphs under that name, plaintiff should (1) set
forth the allegations supporting his claim or claims against
that defendant, as well as the constitutional right or rights
he claims that defendant violated and (2) state whether the
defendant is being sued in his/her individual capacity or
official capacity. Plaintiff should then proceed in that same
manner with each of the remaining defendants.
second 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 each be limited to a single set of
circumstances. No exhibits are to be attached to the second
amended complaint. Plaintiff must sign the second amended
complaint before sending it to the Court.
must submit his second amended complaint on a court-provided
form, and it must comply with Rules 8 and 10 of the Federal
Rules of Civil Procedure. After receiving the second amended
complaint, the Court will review it pursuant to 28 U.S.C.
§ 1915. Plaintiffs failure to make specific and
actionable allegations against a particular defendant will
result in the dismissal of his case against that defendant.
If plaintiff fails to file a second amended complaint on a
Court-provided form within twenty-one days of the date of
this Order, in accordance with the instructions set forth
herein, the Court will dismiss this action without prejudice
and without further notice to plaintiff.