United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiff's pro se
complaint. The complaint is defective because it has not been
drafted on a Court-provided form, see Local Rule
2.06(A), and because plaintiff has neither paid the filing
fee nor submitted a motion to proceed in forma pauperis along
with a prison account statement, see 28 U.S.C.
§ 1915(a). Additionally, plaintiff will be required to
amend his complaint in order to state a claim for relief
brings this action pursuant to 42 U.S.C. § 1983. He is
currently incarcerated at South Central Correctional Center
(“SCCC”) in Licking, Missouri. He has filed a
complaint against defendants the State of Missouri; Jennifer
Joyce (Prosecutor); Rachel Scharzlose (Asst. Prosecutor); and
Bobby Bailey (Former Asst. Prosecutor). Plaintiff asserts
that each of these defendants violated his rights by
initiating and commencing a felony prosecution against him in
violation of the Fourth Amendment.
Court is required to conduct a pre-service review of an
action filed by a prisoner seeking to proceed in forma
pauperis. See 28 U.S.C. § 1915. If any part of
the complaint is frivolous, malicious, or fails to state a
claim upon which relief can be granted, the Court is required
to dismiss the frivolous portions of the lawsuit prior to
ordering service of process on the complaint. 28 U.S.C.
noted above, plaintiff, a prisoner, has failed to submit a
motion to proceed in forma pauperis or an accompanying prison
account statement, required by 28 U.S.C. § 1915(a).
Accordingly, the Court cannot grant plaintiff leave to
proceed in forma pauperis at this time.
the way plaintiff's complaint is currently drafted fails
to state a claim upon which relief may be granted. The State
of Missouri is absolutely immune from liability under 42
U.S.C. § 1983. See Will v. Michigan Dept. of State
Police, 491 U.S. 58, 63 (1989). And where “[a]
prosecutor is acting as advocate for the state in a criminal
prosecution,  the prosecutor is entitled to absolute
immunity.” Brodnicki v. City of Omaha, 75 F.3d
1261, 1266 (8th Cir. 1996). Thus, as plaintiff's
complaint is currently pled, it is subject to dismissal.
because plaintiff is proceeding pro se, the Court will allow
plaintiff to file an amended complaint on a Court form.
Plaintiff shall have thirty days from the date of this Order
to file an amended complaint in accordance with the specific
instructions set forth herein.
claims in an action must be included in one, centralized
complaint form. Plaintiff is warned that the filing of an
amended complaint replaces the original complaint and all
previously-filed pleadings, and so he must include each and
every one of the claims he wishes to pursue in the amended
complaint. See, 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,
supplements, and/or pleadings that are not included in the
amended complaint will be deemed abandoned and will not be
considered. Id. If plaintiff wishes to sue
defendants in their individual capacities, plaintiff must
specifically say so in the amended complaint. If plaintiff
fails to sue defendants in their individual capacities, this
action may be subject to dismissal. All of plaintiff's
claims should be clearly set forth in the “Statement of
Claim.” If plaintiff fails to file an amended complaint
on a Court form within thirty days in accordance with the
Court's instructions, the Court will dismiss this action
without prejudice and without further notice.
IT IS HEREBY ORDERED that the Clerk shall mail to plaintiff a
copy of the Court's form Prisoner Civil Rights Complaint.
FURTHER ORDERED that the Clerk shall mail to plaintiff a copy
of the Court's Motion to Proceed in Forma Pauperis -
FURTHER ORDERED that plaintiff shall file an amended
complaint on the Court-provided form within (30) days of the
date of this Order.
FURTHER ORDERED that plaintiff shall either pay the $400
filing fee or submit a motion to proceed in forma pauperis