United States District Court, E.D. Missouri, Southeastern Division
ROBERT D. NELSON, Plaintiff,
JASON LEWIS, et al., Defendants.
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
matter is before the Court upon four motions: Defendant
Corizon Health Services and Rebekkah Graham's Motion to
Dismiss (ECF No. 9), defendant Jason Lewis and Southeast
Correctional Center's Motion to Dismiss (ECF No. 10), and
plaintiff Robert D. Nelson's “Motion for Order of
Protection” (ECF No. 5) and “Motion for
Appointment of Counsel, Motion for Temporary Restraining
Order and Injunction [sic] Relief and Motion for
Extension of Time to File Amended 42 U.S.C. and 1983
[sic] Complaint and ADA Complaint.” (ECF No.
12). The Court construes the latter motion as a motion for
leave to file an amended complaint, and will refer to it as
plaintiff's “Motion for Leave to Amend.” For
the reasons explained below, the Court will hold
defendants' motions to dismiss in abeyance, and grant
plaintiff's Motion for Leave to Amend to the extent
plaintiff seeks leave to file an amended complaint. The Court
will deny the motion in all other respects, and will also
deny plaintiff's motion for a protective order.
is a prisoner who is proceeding pro se. He originally filed
this 42 U.S.C. § 1983 action in the Circuit Court of
Mississippi County, Missouri. In his petition, plaintiff
alleged his civil rights were being violated because he was
not receiving his desired pain medications. On July 8, 2019,
defendants Southeast Correctional Center and Jason Lewis
(collectively “the MDOC defendants”) filed a
notice of removal in this Court. On July 9, 2019, plaintiff
filed a “Motion for Order of Protection, ” asking
this Court to bar defendant Rebekkah Graham from treating him
and barring the Missouri Department of Corrections from
transferring him. On July 15, 2019, the MDOC defendants and
defendants Corizon Health Services and Rebekkah Graham
(collectively “the Corizon defendants”) filed the
instant motions to dismiss, arguing that the Court should
dismiss this case pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. On July 22, 2019, plaintiff filed
the instant Motion for Leave to Amend, in which he can be
understood to seek leave to file an amended complaint.
However, plaintiff did not attach to the motion a copy of a
proposed amended complaint. The MDOC defendants filed a reply
in which they reasserted the bases for granting their motion
carefully reviewed the petition plaintiff filed in state
court, the instant motions to dismiss, and plaintiff's
motions, the Court has determined to grant plaintiff's
Motion for Leave to Amend only to the extent plaintiff seeks
leave to file an amended complaint. Because plaintiff did not
attach a copy of a proposed amended complaint to the motion,
the Court will hold the motions to dismiss in abeyance rather
than determine they are moot.
Court will deny plaintiff's request for the appointment
of counsel at this time, without prejudice to being
reasserted if appropriate at a later stage of this
litigation. The Court will also deny plaintiff's request
for injunctive relief and his separately-filed motion for a
protective order, without prejudice, as plaintiff's
allegations in support are simply too conclusory for the
Court to determine that plaintiff is entitled to such relief.
will be given thirty days to file an amended complaint.
Plaintiff is warned that the amended complaint will replace
the original. See In re Wireless Telephone Federal Cost
Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir.
2005). Plaintiff must type or neatly print the amended
complaint on the Court's prisoner civil rights complaint
form, which will be provided to him.
“Caption” section of the complaint form,
plaintiff must write the name of each party he intends to
sue. See Fed. R. Civ. P. 10(a) (“The title of
the complaint must name all the parties”). Plaintiff
must avoid naming anyone as a defendant unless that person is
directly related to his claim. Plaintiff must also state
whether he intends to sue each defendant in his or her
individual capacity, official capacity, or
both. In the “Statement of Claim”
section, plaintiff should begin by writing the
defendant's name. In separate, numbered paragraphs under
that name, plaintiff should set forth a short and plain
statement of the facts that support his claim or claims
against that defendant. See Fed. R. Civ. P. 8(a).
Each averment must be simple, concise, and direct.
See Id. Plaintiff must state his claims in numbered
paragraphs, and each paragraph should be “limited as
far as practicable to a single set of circumstances.”
See Fed. R. Civ. P. 10(b). If plaintiff names more
than one defendant, he should only include claims that arise
from the same transaction or occurrence, or simply put,
claims that are related to each other. See Fed. R.
Civ. P. 20(a)(2). Alternatively, plaintiff may choose to name
a single defendant, and set forth as many claims as he has
against him or her. See Fed. R. Civ. P. 18(a).
important that plaintiff allege facts explaining how each
defendant was personally involved in or directly responsible
for harming him. See Madewell v. Roberts, 909 F.2d
1203, 1208 (8th Cir. 1990). It is not enough for plaintiff to
refer to a group of defendants and make general allegations
against them. Instead, plaintiff must explain the role of
each defendant, so that each defendant will have notice of
what he or she is accused of doing or failing to do. See
Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848
(8th Cir. 2014) (stating that the essential function of a
complaint “is to give the opposing party fair notice of
the nature and basis or grounds for a claim”).
Furthermore, the Court emphasizes that the “Statement
of Claim” requires more than “labels and
conclusions or a formulaic recitation of the elements of a
cause of action.” See Neubauer v. FedEx Corp.,
849 F.3d 400, 404 (8th Cir. 2017). Finally, plaintiff is
advised he cannot bring claims on behalf of other people.
Instead, he must allege a personal loss. See Martin v.
Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
IT IS HEREBY ORDERED that plaintiff's
Motion for Leave to Amend is GRANTED to the
extent plaintiff seeks leave to file an amended complaint,
and DENIED without prejudice in all other
respects. (ECF No. 12)
IS FURTHER ORDERED that plaintiff's Motion for
Order of Protection is DENIED without
prejudice. (ECF No. 5)
IS FURTHER ORDERED that the Clerk shall mail to
plaintiff a copy of the Court's prisoner civil rights
IS FURTHER ORDERED that plaintiff must file an
amended complaint within thirty (30) ...