United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of plaintiff
Harris Wyatt, an inmate at the St. Charles County Jail, for
leave to commence this action without prepayment of the
required filing fee. For the reasons stated below, the Court
will grant the motion and assess an initial partial filing
fee of $15.35. In addition, the Court will permit plaintiff
the opportunity 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 prison account to pay the entire fee, the Court
must assess and, when funds exist, collect an initial partial
filing fee of twenty 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 twenty percent of the preceding month's
income credited to his 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 his account exceeds $10.00, until the filing fee is fully
support of the instant motion, plaintiff submitted an inmate
account statement, detailing his finances for the month of
June. According to that statement, plaintiffs average account
balance is $76.76. The Court will therefore assess an initial
partial filing fee of $15.35, an amount that is reasonable
based upon the information the Court has about plaintiffs
finances. See 28 U.S.C. § 1915(b)(1); see
also Henderson v. Norris, 129 F.3d 481, 484 (8th Cir.
1997) (when a prisoner is unable to provide the Court with a
certified copy of his prison account statement for the six
months preceding the filing of the complaint, the Court
should assess an amount "that is reasonable, based on
whatever information the court has about the prisoner's
Standard on Initial Review
28 U.S.C. § 1915(e)(2), 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. A pleading that offers "labels
and conclusions" or "a formulaic recitation of the
elements of a cause of action will not do, " nor will a
complaint suffice if it tenders bare assertions devoid of
factual enhancement. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal citation omitted).
conducting initial review pursuant to § 1915(e)(2), the
Court must accept as true the allegations in the complaint,
and must give the complaint the benefit of a liberal
construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, the tenet that a court must accept the
allegations as true does not apply to legal conclusions,
Iqbal, 556 U.S. at 678, and affording a pro
se complaint the benefit of a liberal construction does
not mean that procedural rules in ordinary civil litigation
must be interpreted so as to excuse mistakes by those who
proceed without counsel. See McNeil v. U.S., 508
U.S. 106, 113 (1993). Even pro se complaints are
required to allege facts which, if true, state a claim for
relief as a matter of law. Martin v. Aubuchon, 623
F.2d 1282, 1286 (8th Cir. 1980); see also Stone v.
Harry, 364 F.3d 912, 914-15 (8th Cir. 2004) (federal
courts are not required to "assume facts that are not
alleged, just because an additional factual allegation would
have formed a stronger complaint").
complaint is defective because it was not drafted using the
Court's form, see E.D. Mo. Local Rule 2.06(A),
and it is unsigned. Fed.R.Civ.P. 11 (an unrepresented party
must personally sign all of his pleadings, motions, and other
papers, and this Court must "strike an unsigned paper
unless the omission is promptly corrected after being called
to the . . . party's attention"). In addition, the
complaint contains only conclusory statements devoid of
factual enhancement. Because plaintiff is proceeding pro
se, the Court will give him an opportunity to file an
amended complaint. Plaintiff must prepare the amended
complaint using a Court-provided form, and must follow Rules
8 and 10 of the Federal Rules of Civil Procedure. In the
"Caption" section of the form complaint, plaintiff
should write the name of the defendant(s) he wishes to sue.
In the "Statement of Claim" section, plaintiff
should begin by writing the defendant's name. In
separate, numbered paragraphs under that name, plaintiff
should: (1) set forth the factual allegations supporting his
claim against that defendant; (2) state what constitutional
or federal statutory right(s) that defendant violated; and
(3) state whether the defendant is being sued in his/her
individual capacity or official capacity. If plaintiff is
suing more than one defendant, he shall proceed in this
manner with each one, separately writing each individual
defendant's name and, under that name, in numbered
paragraphs, the allegations specific to that particular
defendant and the right(s) that defendant violated.
shall have twenty-one (21) days from the date of this Order
to file an amended complaint. Plaintiff is warned that the
filing of the amended complaint completely replaces the
original. Claims that are not re-alleged are deemed
abandoned. E.g., In re Wireless Telephone Federal Cost
Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir.
IT IS HEREBY ORDERED that plaintiffs motion for leave to
proceed in forma pauperis (Docket No. 3) is GRANTED.
FURTHER ORDERED that plaintiff must pay an initial filing fee
of $15.35 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
number; (3) the case number; and (4) the statement that the
remittance is for an original proceeding.
FURTHER ORDERED that, within twenty-one (21) days of the date
of this Memorandum and Order, plaintiff shall submit an
amended complaint in ...