Ward v. Payne

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

KEVIN WARD, )

)

Plaintiff, )

)

v. ) No. 4:20-cv-01093-SPM

)

STANLEY PAYNE, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Kevin Ward for leave to

commence this civil action without prepayment of the required filing fee. (Docket No. 3). 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 $1.50. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court

will direct plaintiff to file an amended complaint on a Court-provided form, setting forth only his

own claims.

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 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.

In support of his motion for leave to proceed in forma pauperis, plaintiff submitted a copy

of his certified inmate account statement. (Docket No. 4). The account statement shows an average

monthly deposit of $7.50. The Court will therefore assess an initial partial filing fee of $1.50,

which is 20 percent of plaintiff’s average monthly deposit.

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. To

state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief,

which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

“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 draw upon judicial experience and common sense. Id. at 679. The

court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber, 820

F.3d 958, 964 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73

(8th Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not

required to “accept as true any legal conclusion couched as a factual allegation”).

When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit

of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction”

means that if the essence of an allegation is discernible, the district court should construe the

plaintiff’s complaint in a way that permits his or her claim to be considered within the proper legal

framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, 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) (stating that federal courts are not required to “assume facts that are not alleged, just

because an additional factual allegation would have formed a stronger complaint”). In addition,

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. United States, 508 U.S. 106, 113 (1993).

Background

Plaintiff is a self-represented litigant who is currently incarcerated at the Eastern Reception,

Diagnostic, and Correctional Center in Bonne Terre, Missouri. On August 18, 2020, plaintiff

jointly filed a civil action with inmate Morris Williams pursuant to 42 U.S.C. § 1983. (Docket No.

1). Along with the complaint, plaintiff filed a motion for appointment of counsel and a motion for

leave to proceed in forma pauperis. (Docket No. 2; Docket No. 3). Both motions were signed by

plaintiff, but not by Morris Williams.

The complaint named Warden Stanley Payne, Functional Unit Manager Ted Eaton, and

CCM II Sara Miller as defendants. In the complaint, plaintiff alleged that he had requested

protective custody, but had instead been placed in administrative segregation, resulting in a denial

of certain privileges. (Docket No. 1 at 6). The complaint also contained similar allegations by

Morris Williams.

On August 24, 2020, the Court struck Morris Williams from the complaint, and had a new

prisoner civil rights case opened for him. (Docket No. 6). Subsequently, Williams filed a motion

to withdraw from the case. (Docket No. 9).

Discussion

As noted above, this case originated when plaintiff and another inmate filed a joint prisoner

civil rights complaint pursuant to 42 U.S.C. § 1983. Because the complaint contains claims by

both plaintiff and the second inmate, plaintiff will be directed to file an amended complaint on a

Court-form that includes only his own claims. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th

Cir. 1985) (explaining that a plaintiff must allege a personal loss).

A. Amendment Instructions

Plaintiff should type or neatly print his amended complaint on the Court’s civil rights form,

which will be provided to him. See E.D. Mo. L.R. 2.06(A) (“All actions brought by self-

represented plaintiffs or petitioners should be filed on Court-provided forms”). If the amended

complaint is handwritten, the writing must be legible. In the “Caption” section of the Court-

provided form, plaintiff should clearly name each and every party he is intending to sue. See Fed.

R. Civ. P. 10(a) (“The title of the complaint must name all the parties”). If there is not enough

room in the caption, plaintiff may add additional sheets of paper. However, all the defendants must

be clearly listed. Plaintiff should fill out the complaint form in its entirety. Plaintiff is advised that

he can only bring claims on behalf of himself, and cannot bring claims on behalf of other prisoners.

In the “Statement of Claim” section, plaintiff should provide a short and plain statement of

the factual allegations supporting his claim. See Fed. R. Civ. P. 8(a). Plaintiff should put each

claim into a numbered paragraph, and each paragraph should be “limited as far as practicable to a

single set of circumstances.” See Fed. R. Civ. P. 10(b).

The amended complaint should only include claims that arise out of the same transaction

or occurrence. In other words, plaintiff should only include claims that are related to each other.

See Fed. R. Civ. P. 20(a)(2). Alternatively, plaintiff may choose a single defendant and set forth

as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a).

In structuring his amended complaint, plaintiff should begin by writing the defendant’s

name. In separate, numbered paragraphs under that name, plaintiff should write a short and plain

statement of the factual allegations supporting his claim against that specific defendant. If plaintiff

is suing more than one defendant, he should follow the same procedure for each defendant.

Plaintiff must specify whether he intends to sue each defendant in an official capacity, an

individual capacity, or both. The failure to sue a defendant in his or her individual capacity may

result in the dismissal of that defendant.

If plaintiff is suing a defendant in an individual capacity, he is required to allege facts

demonstrating the personal responsibility of the defendant for harming him. See Madewell v.

Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (stating that § 1983 liability “requires a causal link

to, and direct responsibility for, the deprivation of rights”). 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).

If plaintiff is suing multiple defendants, it is important that he establish the responsibility

of each separate defendant for harming him. That is, for each defendant, plaintiff must allege facts

showing how that particular defendant’s acts or omissions violated his constitutional rights. It is

not enough for plaintiff to make general allegations against all the defendants as a group. Rather,

plaintiff needs to provide the role of each named defendant in this case, in order that each specific

defendant can receive notice of what he or she is accused of doing. 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”).

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 Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928

(8th Cir. 2005) (“It is well-established that an amended complaint supercedes an original complaint

and renders the original complaint without legal effect”).

After receiving the amended complaint, the Court will review it pursuant to 28 U.S.C. §

1915. Plaintiff’s failure to make specific factual allegations against a defendant will result in the

dismissal of that defendant. If plaintiff fails to file an amended complaint on a Court-provided

form within thirty (30) days in accordance with the instructions set forth herein, the Court will

dismiss this action without prejudice and without further notice to plaintiff.

B. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel. (Docket No. 2). 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. 2006).

After 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. Finally, the Court is directing plaintiff to file an amended complaint. The Court will

entertain future motions for appointment of counsel as the case progresses, if appropriate.

C. Motion to Withdraw

Morris Williams has filed a motion to withdraw from this case. (Docket No. 9). As

discussed above, Williams has already been stricken from this action, and a new civil action

opened for him. See Williams v. Payne, et al., No. 4:20-cv-1132-SEP (E.D. Mo. Aug. 24, 2020).

Because Williams is no longer a party to the instant action, his motion to withdraw will be denied

as moot.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis

(Docket No. 3) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $1.50

within thirty (30) days of the date of this order. 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) the case number; and (4) the statement that the remittance is for an original

proceeding.

IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel (Docket

No. 2) is DENIED at this time.

IT IS FURTHER ORDERED that Morris Williams’s motion to withdraw (Docket No.

9) is DENIED AS MOOT.

IT IS FURTHER ORDERED that the Clerk of Court shall send to plaintiff a copy of the

Court’s prisoner civil rights complaint form.

IT IS FURTHER ORDERED that plaintiff shall filed an amended complaint on the Court

form within thirty (30) days of the date of this order, in accordance with the instructions set forth

above.

IT IS FURTHER ORDERED that if plaintiff fails to file an amended complaint within

thirty (30) days, this action will be dismissed without prejudice and without further notice.

IT IS FURTHER ORDERED that upon receipt of plaintiff’s amended complaint, the

Court will review it pursuant to 28 U.S.C. § 1915.

A Inj 0)

SHIRLEY PADMORE MENSAH

UNITED STATES MAGISTRATE JUDGE

Dated this 11th day of September, 2020.