United States District Court, E.D. Missouri, Southeastern District
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of plaintiff
Brandon Nicholas Barnett, a prisoner at Southeast
Correctional Center (“SECC”), for leave to
commence this action without prepayment of the filing fee.
Having reviewed plaintiff's financial information, the
Court will assess an initial partial filing fee of $1.00. In
addition, the Court will allow 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 20 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 20 percent of the preceding month's income credited to
the prisoner's 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 the prisoner's account exceeds $10.00, until the
filing fee is fully paid. Id.
case, plaintiff filed a statement with the Court stating that
he could not provide a certified inmate account statement for
the six months immediately preceding the complaint because
his caseworkers have refused to provide him with one.
Therefore, the Court will require plaintiff to pay an initial
partial filing fee of $1.00. See 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, 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
“further factual enhancement.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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”).
brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights. It appears that plaintiff is
asserting a claim of deliberate indifference to his medical
needs with regard to a stomach ulcer, in violation of the
Eighth Amendment. In addition, the Court believes plaintiff
is also claiming that someone at SECC attempted to retaliate
against him for filing a grievance. However, plaintiff's
claims are difficult to discern at this time.
review of plaintiff's twenty-nine (29) page complaint and
fifty (50) page accompanying exhibits, the Court finds that
plaintiff's complaint does not comply with Rules 8 or 10
of the Federal Rules of Civil Procedure. Rule 8(a) requires
that a complaint contain a short and plain statement of the
claim showing that the pleader is entitled to relief, and . .
. a demand for judgment for the relief the pleader seeks.
Rule 8(e) requires that A[e]ach averment of a pleading shall
be simple, concise, and direct. And Rule 10(b) requires that
[a]ll averments of claim or defense shall be made in numbered
paragraphs, the contents of each of which shall be limited as
far as practicable to a statement of a single set of
complaint is long and rambling. He has listed over eighty
(80) defendants in this matter, and he has not identified
exactly what claims he is bringing against each individual
defendant. For example, multiple defendants are listed
throughout the pages of plaintiff's complaint, but he has
not listed, by paragraph and claim, exactly what each
defendant did to plaintiff to violate his rights and how that
the complaint does not contain a short and plain statement
showing that plaintiff is entitled to relief. Nor does the
complaint contain a demand for judgment for the relief
plaintiff seeks. The allegations are not simple, concise, or
direct, and there are no numbered paragraphs. In consequence,
the complaint is subject to dismissal under 28 U.S.C. §
plaintiff is proceeding pro se, the Court will allow
him to file an amended complaint on a court-provided form.
Plaintiff is warned that the filing of an amended complaint
replaces the original complaint, and so it must include all
claims plaintiff wishes to bring. E.g., In re
Wireless Telephone Federal Cost Recovery Fees
Litigation, 396 F.3d 922, 928 (8th Cir. 2005). Plaintiff
must submit the amended complaint on a ...