United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.
matter is before me on the motion of plaintiff Joshua William
Mitchell, an inmate at the South Central Correctional Center,
for leave to commence this civil action without prepayment of
the required filing fee. I have reviewed the motion and the
financial information submitted in support, and I will grant
the motion and assess an initial partial filing fee of
$22.59. See 28 U.S.C. § 1915(b)(1). In
addition, for the reasons discussed below, I will direct the
Clerk of Court to effect service of process upon the
defendant in his individual capacity.
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.
support of the instant motion, plaintiff submitted a
certified account statement showing an average monthly
deposit of $34.11, and an average monthly balance of $112.93.
I will therefore assess an initial partial filing fee of
$22.59, which is twenty percent of plaintiff's average
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. To state a claim for relief under § 1983, a
complaint must plead more than “legal
conclusions” and “[t]hreadbare recitals of the
elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A plaintiff must demonstrate a
plausible claim for relief, which is more than a “mere
possibility of misconduct.” Id. at 679.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678. Determining
whether a complaint states a plausible claim for relief is a
context-specific task that requires the reviewing court to,
inter alia, draw upon judicial experience and common
sense. Id. at 679.
complaints are to be liberally construed. Estelle v.
Gamble, 429 U.S. 97, 106 (1976). However, they still
must allege sufficient facts to support the claims alleged.
Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir.
2004); see also Martin v. Aubuchon, 623 F.2d 1282,
1286 (8th Cir. 1980) (even pro se complaints are required to
allege facts which, if true, state a claim for relief as a
matter of law). Federal courts are not required to
“assume facts that are not alleged, just because an
additional factual allegation would have formed a stronger
complaint.” Stone, 364 F.3d at 914-15. In
addition, giving 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).
brings this action pursuant to 42 U.S.C. § 1983 against
Ryan Brook, a corrections officer at the Potosi Correctional
Center (“PCC”). Plaintiff's allegations stem
from an event that occurred while he was incarcerated there.
Plaintiff states that he sues Brook in both an official and
individual capacity, and he seeks monetary damages in the
amount of $185, 000.
alleges that, while his hands were cuffed behind his back,
Brook dragged him by his elbow for 20 yards, choked him, and
repeatedly struck his face with a closed fist. I conclude
that, for purposes of initial review, these allegations state
a claim against Brook in his individual capacity. I will
therefore direct the Clerk of Court to effect service of
process upon Brook in his individual capacity. However,
plaintiff's official capacity claims against Brook will
be dismissed. Naming Brook in his official capacity is the
equivalent of naming the government entity that employs him,
which in this case is the Missouri Department of Corrections.
See Will v. Michigan Dep't of State Police, 491
U.S. 58, 71 (1989). “[N]either a State nor its
officials acting in their official capacity are
‘persons' under § 1983.” Id.
also alleges that “the staff” at PCC
“refuses to provide the names” of officers who
responded to the incident, and that “other
officers” refused to stop “the ones using
unnecessary excessive use of force.” (Docket No. 1 at
5). In general, fictitious parties may not be named as
defendants in a civil action. Phelps v. United
States, 15 F.3d 735, 739 (8th Cir. 1994). An action may
proceed against a party whose name is unknown, however, if
the complaint makes sufficiently specific allegations to
permit the identity of the party to be ascertained after
reasonable discovery. Munz v. Parr, 758 F.2d 1254,
1257 (8th Cir. 1985). In this case, plaintiff has referred to
defendants who are both unidentified and indeterminate in
number. This is impermissible. See Estate of Rosenberg v.
Crandell, 56 F.3d 35, 37 (8th Cir. 1995) (suit naming
“various other John Does to be named when
identified” not permissible). In addition, it is
insufficient to say that “the staff” or
“other officers” acted badly and caused harm.
Instead, the complaint must state how each individual
defendant contributed to the constitutional violation.
See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
(“Because vicarious liability is inapplicable to
Bivens and § 1983 suits, a plaintiff must plead
that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution”). Therefore, to the extent plaintiff can
be understood to attempt to name fictitious parties as
defendants, the complaint is legally frivolous and/or fails
to state a claim upon which relief can be granted.
IT IS HEREBY ORDERED that plaintiff's
motion to proceed in forma pauperis (Docket No. 2) is
IS FURTHER ORDERED that, within thirty (30) days of
the date of this Memorandum and Order, plaintiff must pay an
initial filing fee of $22.59. 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) ...