Wallace v. Crouch

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ROBERT E. WALLACE, JR., )

)

Plaintiff, )

)

v. ) No. 4:21-CV-1036 RLW

)

TAMRA CROUCH, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Robert E. Wallace, Jr. 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 $41.29. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed

below, the Court will direct plaintiff to file an amended complaint.

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 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 has submitted a

copy of his inmate account statement. (Docket No. 6). The account statement shows an average

monthly deposit of $206.43. The Court will therefore assess an initial partial filing fee of $41.29,

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 complaint filed by a self-represented person under 28 U.S.C.

§ 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 complaints filed by self-represented persons 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 self-

represented person’s 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).

The Complaint

Plaintiff is a self-represented litigant who is currently incarcerated at the Potosi

Correctional Center in Mineral Point, Missouri. He brings this civil action pursuant to 42 U.S.C.

§ 1983, naming Nurse Practitioner Tamra Crouch and Corizon Health Care as defendants. (Docket

No. 1 at 2-3). Nurse Practitioner Crouch is sued in both an individual capacity and an official

capacity.

Plaintiff’s complaint appears to concern the denial of medical treatment. But plaintiff has

not provided any factual allegations against either defendant, as he left the “Statement of Claim”

portion of the form complaint entirely blank. (Docket No. 1 at 3). Plaintiff also did not list any

injuries or request any relief. (Docket No. 1 at 4-5).

Discussion

As stated above, plaintiff is a self-represented litigant who has brought a civil action

pursuant to 42 U.S.C. § 1983. Because he is proceeding in forma pauperis, the Court reviewed his

complaint under 28 U.S.C. § 1915. Based on that review, plaintiff’s complaint is subject to

dismissal for failure to state a claim because plaintiff has not made any factual allegations against

either of the two named defendants. Because plaintiff is a self-represented litigant, the Court will

give him the opportunity to file an amended complaint according to the instructions set forth below.

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, and ensure that it is

signed.

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”). Further, 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 any 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 days in accordance with the instructions set forth herein, the Court will dismiss

this action without prejudice and without further notice to plaintiff.

Motion to Appoint Counsel

Plaintiff has filed a motion for appointment of counsel. (Docket No. 2). In civil cases, a

self-represented litigant does not have a constitutional or statutory right to appointed counsel.

Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013). Instead, 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 self-represented litigant to investigate the facts, the

existence of conflicting testimony, and the ability of the self-represented 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. As discussed above, the Court is ordering plaintiff to file an amended

complaint, as he has failed to present any factual allegations. The Court will entertain future

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

Accordingly,

IT IS HEREBY ORDERED that plaintiffs 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 $41.29

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 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 file an amended complaint on the Court-

provided form by February 3, 2022, in accordance with the instructions set forth above.

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

Court-provided form in accordance with the instructions set forth above, or fails to pay the initial

partial filing fee of $41.29, by February 3, 2022, 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.

ONNIE L. WHITE

UNITED STATES DISTRICT JUDGE

Dated this 3rd day of January, 2022.