United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
a prisoner, seeks leave to proceed in forma pauperis in this
civil action under 42 U.S.C. § 1983. Having reviewed
Plaintiff's financial information, the Court assesses a
partial initial filing fee of $1.70, which is twenty percent
of his average monthly deposit. See 28 U.S.C. §
1915(b). Additionally, the Court will order Plaintiff to
submit an amended complaint.
28 U.S.C. § 1915(e), 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, 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.
reviewing a complaint under 28 U.S.C. § 1915(e), the
Court accepts the well-pled facts as true. Furthermore, the
Court liberally construes the allegations.
brings this action against several prison and medical
officials at the Moberly Correctional Center
(“MCC”). He alleges that before he was
transferred to MCC his prison doctor wrote a lay-in allowing
him to wear Dr. Scholl's shoes sent in by his family. He
says he needed them because he got severe foot infections
from the prison-issued boots.
arrived at MCC, his shoes were taken away. He says Defendant
Maurita Jenness, a nurse, refused to let him have the shoes
regardless of the lay-in written by his former doctor. He
says he suffered severe foot infections as a result. He also
claims to have had two heart attacks. He alleges that Jenness
blocked him from seeing the doctor for five months.
complaint does not state whether Defendants 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 a
government official in his or her official capacity is the
equivalent of naming the government entity that employs the
official, in this case the State of Missouri.
Willv.MichiganDep=tofStatePolice, 491 U.S. 58, 71
(1989). “[N]either a State nor its officials acting in
their official capacity are ‘persons' under §
1983.” Id. As a result, the complaint fails to
state a claim upon which relief can be granted.
with the exception of Jenness, Plaintiff has not alleged the
personal involvement of the Defendants in the violations of
his rights. So, the complaint fails to state a claim for this
reason as well. See Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009) (“Because vicarious liability is
inapplicable to Bivens and § 1983 suits, a
plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has
violated the Constitution.”); Camberos v.
Branstad, 73 F.3d 174, 176 (8th Cir. 1995) (“a
general responsibility for supervising the operations of a
prison is insufficient to establish the personal involvement
required to support liability.”); George v.
Smith, 507 F.3d 605, 609 (7th Cir. 2007) (“Only
persons who cause or participate in the [constitutional]
violations are responsible. Ruling against a prisoner on an
administrative complaint does not cause or contribute to the
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 each and every one of his
claims in the amended complaint. E.g., In re
Wireless Telephone Federal Cost Recovery Fees
Litigation, 396 F.3d 922, 928 (8th Cir. 2005). Any
claims from the original complaint that are not included in
the amended complaint will be considered abandoned.
Id. Plaintiff must allege how each and every
Defendant is directly responsible for the alleged harm. In
order to sue Defendants in their individual capacities,
Plaintiff must specifically say so in the complaint. If
Plaintiff fails to sue Defendants in their individual
capacities, this action may be subject to dismissal.
IT IS HEREBY ORDERED that Plaintiff's motion to proceed
in forma pauperis [ECF No. 2] is GRANTED.
FURTHER ORDERED that the Plaintiff must pay an initial filing
fee of $1.70 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