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Barnett v. Lewis

United States District Court, E.D. Missouri, Southeastern District

January 5, 2018

BRANDON NICHOLAS BARNETT, Plaintiff,
v.
JASON LEWIS, et al., Defendants.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.

         This 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.

         28 U.S.C. § 1915(b)(1)

         Pursuant 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.

         In this 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 finances.”).

         Legal Standard on Initial Review

         Under 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)).

         When 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”).

         The Complaint

         Plaintiff 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.

         After 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 circumstances.

         The 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 affected him.

         Additionally, 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. § 1915(e).

         Because 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 ...


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