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Vellmer v. St. Louis County Dept. of Just. Services

United States District Court, E.D. Missouri, Eastern Division

August 4, 2017

RICKY JOSEPH VELLMER, Plaintiff,
v.
ST. LOUIS COUNTY DEPT. OF JUST. SERVICES, et al., Defendants.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the motion of plaintiff (registration no.1343), an inmate at St. Louis County Justice Center, for leave to commence this action without payment of the required filing fee [Doc. #2]. For the reasons stated below, the Court finds that the plaintiff does not have sufficient funds to pay the entire filing fee and will not assess an initial partial filing fee at this time.[1] See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will order plaintiff submit an amended pleading within thirty (30) days of the date of this Memorandum and Order.

         28 U.S.C. § 1915(e)

         Pursuant 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 Alacks 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).

         The Original Complaint

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Named as defendants are Herbert Bernsen and St. Louis County Department of Justice Services. Defendants are named in their official and individual capacities.

         Plaintiff asserts that he has suffered various medical difficulties after having a stroke. He claims that he has not been given proper follow-up care from the stroke. He also claims that he has had low back pain, nerve damage in his arms and hands, high blood pressure and seizures but he has gone for as long as thirty (30) days without the proper medications.

         Plaintiff alleges that his health has significantly suffered since he has been incarcerated at the St. Louis County Justice Center, and he states that Herbert Bernsen, the Director of Correctional Medical, is aware of his condition and has failed to resolve his complaints after multiple grievances. Plaintiff also states that Nurse Kearney, a Nurse Supervisor, and Major Swim, are also aware of his complaints and have failed to resolve his issues. But as to these three defendants, plaintiff has failed to allege exactly what specific treatment he has asked for and been denied and when the purported treatment has been denied by defendants. Plaintiff seeks monetary damages and injunctive relief.

         Discussion

         Plaintiff has sued defendants in their “official capacities.” Naming a government official in his or her official capacity is the equivalent of naming the government entity that employs the official. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). To state a claim against a municipality or a government official in his or her official capacity, plaintiff must allege that a policy or custom of the government entity is responsible for the alleged constitutional violation. Monell v. Dep't of Social Services, 436 U.S. 658, 690-91 (1978). The instant complaint does not contain any allegations that a policy or custom of St. Louis County or Corizon Health was responsible for the alleged violations of plaintiff's constitutional rights. As a result, the complaint currently fails to state a claim upon which relief can be granted with respect to plaintiff's official capacity claims.

         Additionally, as plaintiff's complaint is currently written with respect to his individual capacity claims, the only defendants personally involved in allegedly violating his constitutional rights are Herbert Bernsen, Nurse Kearney and Major Swim. However, plaintiff has failed to properly allege specific allegations of deliberate indifference to his medical needs with respect to these three defendants. For example, plaintiff has failed to allege that he asked for medical care on a specific date and was denied care by a specific defendant on that date. Or that a specific defendant knew of plaintiff's need for medical care on a specific date but that the defendant was deliberately indifferent to plaintiff's need for care, relative to one specific illness, on that particular date.

         In order to show liability under § 1983, a plaintiff must allege that a state actor was directly responsible for an alleged violation of plaintiff's purported deprivation of rights. See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (ALiability under § 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of rights.@);see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable under § 1983 where plaintiff fails to allege defendant was personally involved in or directly responsible for incidents that injured plaintiff); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in § 1983 suits). As a result, even if plaintiff had made allegations against the defendants in their individual capacities, he has not clearly alleged personal responsibility for an Eighth Amendment violation on behalf of defendants Bernsen, Swim and Kearney.[2]

         Given that plaintiff's claims are subject to dismissal as currently claimed, the Court will allow plaintiff to amend his complaint on a court-provided form. Plaintiff has thirty (30) days from the date of this Order to file an amended complaint in accordance with the specific instructions set forth here. All claims in the action must be included in one, centralized complaint form. See Fed. R. Civ. P. 7(a)(1), 8(a).

         Additionally, plaintiff is warned that the filing of an amended complaint replaces the original complaint and all previously-filed pleadings, so plaintiff 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. The allegations in the complaint must show how each and every defendant is directly responsible for the alleged harms. If plaintiff wishes to sue defendants in their ...


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