United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the motion of plaintiff
Jeremy Bradley Pearson for leave to commence this civil
action without prepayment of the required filing fee. (Docket
No. 2). Having reviewed the motion and the financial
information submitted in support, the Court has determined
that plaintiff lacks sufficient funds to pay the entire
filing fee, and will assess an initial partial filing fee of
$1.70. See 28 U.S.C. § 1915(b)(1).
Additionally, for the reasons discussed below, the Court will
deny plaintiffs motion to appoint counsel at this time. The
Court will also deny plaintiffs motion to amend because
plaintiff has not provided a proposed amended complaint with
is a pro se litigant currently incarcerated at the Moberly
Correctional Center in Moberly, Missouri. On May 23, 2019, he
filed a civil rights complaint pursuant to 42 U.S.C. §
1983, naming Frank Gittemeier and Charles Peepers as
defendants. (Docket No. 1). The defendants were sued in both
their individual and official capacities. Along with the
complaint, plaintiff also filed a motion for leave to proceed
in forma pauperis and a motion to appoint counsel. (Docket
12, 2019, plaintiff filed a motion for leave to amend his
complaint. (Docket No. 4). In the motion, plaintiff states
that he needs to amend his complaint to be "more
specific to the actual event itself, what led up to it, the
wrong committed to me, the [injury] and the relief that I am
seeking." However, he did not attach a proposed amended
complaint to his motion.
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 or her 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 the Court each time the
amount in the prisoner's account exceeds $10.00, until
the filing fee is fully paid. Id.
support of his motion to proceed in forma pauperis, plaintiff
submitted a certified inmate account statement. (Docket No.
5). The statement shows an average monthly deposit of $8.52.
The Court will therefore assess an initial partial filing fee
of $1.70, which is 20 percent of plaintiff s average monthly
to Appoint Counsel
has filed a motion to appoint counsel. (Docket No. 3). The
motion will be denied at this time. In civil cases, a pro se
litigant does not have a constitutional or statutory right to
appointed counsel. Ward v. Smith, 721 F.3d 940, 942
(8th Cir. 2013). See also Stevens v.
Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (stating that
"[a] pro se litigant has no statutory or constitutional
right to have counsel appointed in a civil case").
Rather, a district court may appoint counsel in a civil case
if the court is "convinced that an indigent plaintiff
has stated a non-frivolous claim.. .and where the nature of
the litigation is such that plaintiff as well as the court
will benefit from the assistance of counsel."
Patterson v. Kelley, 902 F.3d 845, 850
(8th Cir. 2018). When determining whether to
appoint counsel for an indigent litigant, a court considers
relevant factors such as the complexity of the case, the
ability of the pro se litigant to investigate the facts, the
existence of conflicting testimony, and the ability of the
pro se litigant to present his or her claim. Phillips v.
Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir.
reviewing these factors, the Court finds that the appointment
of counsel is not warranted at this time. Plaintiff has
demonstrated, at this point, that he can adequately present
his claims to the Court. Additionally, neither the factual
nor the legal issues in this case appear to be complex. The
Court will entertain future motions for appointment of
counsel as the case progresses.
has filed a motion to amend his complaint. (Docket No. 4).
The motion will be denied because plaintiff has not provided
a proposed amended complaint. The Court does not allow
amendments to pleadings by supplementation or interlineation.
Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497
(8th Cir. 2008) (holding "that granting leave
to amend a complaint where the plaintiff has not submitted a
proposed amendment is inappropriate").
plaintiff wishes to amend his complaint, he must provide a
copy of his proposed amended complaint along with the motion
to amend. To that end, the Court will direct the Clerk of
Court to send to plaintiff a copy of the Court's prisoner
civil rights form. Plaintiff should fill out the form in its
entirety, following the directions contained therein. This
should be attached to the motion to amend. Plaintiff will be
given thirty (30) days in which to file a
motion to amend, along with the proposed amended complaint.
Plaintiff is warned that the filing of an amended complaint
completely replaces the original complaint.
This means that claims that are not re-alleged in the amended
complaint will be deemed abandoned. See In re Wireless
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