United States District Court, E.D. Missouri
TERELLE D. HOBBS, Plaintiff,
CAPE GIRARDEAU COUNTY JAIL, et al., Defendants.
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of plaintiff
Terelle D. Hobbs, a prisoner incarcerated at Cape Girardeau
County Jail, 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
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.
has not submitted a prison account statement. As a result,
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.”). If plaintiff is unable
to pay the initial partial filing fee, he must submit a copy
of his prison account statement in support of his claim.
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
brings this action to redress violations of his civil rights,
and names the Cape Girardeau County Jail as defendant.
Plaintiff also brings this action against Unkown Pullum, and
Offier at the Jail. Plaintiff alleges that on or about
February 20, 2019, he became sick at the Jail, and he began
to get very short of breath. He states that he began
“wheezing, losing sleep, and having trouble
breathing.” Plaintiff does not state who he told of his
medical problems at the Jail, nor does plaintiff state when
he exactly he began to get ill or what treatment he received
or from whom. Plaintiff does state that at one point he was
told by Officer Pullum that he would have to wait to see a
doctor, but he does not make it clear the relief he asked
Officer Pullum for. Plaintiff instead states that at some
point he was taken to St. Francois hospital and eventually
had to be placed on a “respiratory system”
because he “wasn't breathing on [his] own.”
Plaintiff has not stated the capacity he is bringing his
lawsuit against Officer Pullum in.
complaint is legally frivolous as to Cape Girardeau County
Jail because the Jail is not an entity that is subject to a
suit. See Ketchum v. City of West Memphis, Ark., 974
F.2d 81, 82 (8th Cir. 1992) (departments or subdivisions of
local government are “not juridical entities suable as
such.”). In addition, the complaint is defective
because it was not drafted on the Court's form.
See E.D. Mo. Local Rule 2.06(A).
plaintiff's allegations against Officer Pullum currently
fail to state a claim upon which relief may be granted.
Plaintiff did not specify whether he is suing Officer Pullum,
the only individual named in the lawsuit, in his official or
individual capacity. Where a “complaint is silent about
the capacity in which [plaintiff] is suing defendant, [a
district court must] interpret the complaint as including
only official-capacity claims.” Egerdahl v. Hibbing
Community College, 72 F.3d 615, 619 (8th Cir. 1995);
Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989).
Naming a government official in his or her official capacity
is the equivalent of naming the government entity that
employs the official - Cape Girardeau County. 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 Cape
Girardeau County or Cape Girardeau County Jail was
responsible for the alleged violations of plaintiff's
constitutional rights. As a result, the complaint fails to
state a claim upon which relief can be granted with respect
to Officer Pullum at the present time.
plaintiff had brought his lawsuit against Officer Pullum in
his individual capacity, his allegations would have still
failed to state a claim upon which relief could be granted.
Liability under § 1983 requires a causal link to, and
direct responsibility for, the alleged deprivation of rights.
Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.
1990); 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). In the instant action, plaintiff has not
set forth enough facts indicating exactly what he asked from
Officer Pullum and how Officer Pullum show a deliberate
indifference to his serious medical needs at the time of the
purported incident. As a result, the complaint fails to state
a claim upon which relief can be granted.
plaintiff is proceeding pro se, the Court will allow him to
file an amended complaint. 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