Opinion
No. 4:17-CV-2179 SPM
08-11-2017
LAWRENCE M. EDWARDS, Plaintiff, v. ELLIS MCSWAIN, et al., Defendants.
MEMORANDUM AND ORDER
Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42 U.S.C. § 1983. Having reviewed plaintiff's financial information, the Court assesses a partial initial filing fee of $29.00, which is twenty percent of his average monthly deposit. See 28 U.S.C. § 1915(b). Additionally, plaintiff must file an amended complaint.
Standard of Review
Under 28 U.S.C. § 1915(e), 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 for relief, a complaint must plead more than "legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a "mere possibility of misconduct." Id. at 679. "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 on its judicial experience and common sense. Id. at 679.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled facts as true. Furthermore, the Court liberally construes the allegations.
The Complaint
Plaintiff alleges that defendants retaliated against him for filing grievances by delaying his entry into Phase II of the Missouri Sexual Offender Program. As a result of the delay, his conditional release date has been moved from February 2017 to August 2018.
Discussion
The complaint is tediously lengthy. It contains far too many irrelevant allegations that have no relation to the actions of the defendants. Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that [plaintiff] is entitled to relief . . ." The complaint does not comply with the Rule, and therefore, the Court will require plaintiff to submit an amended complaint.
To state a prima facie case for First Amendment retaliation, plaintiff must allege that he engaged in protected activity and that defendants, to retaliate for the protected activity, took adverse action against him that would chill a person of ordinary firmness from engaging in that activity. See Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004), cert. denied, 546 U.S. 860 (2005). Plaintiff must limit his allegations to the requirements of stating a prima facie case of retaliation. And he must show how each defendant was personally responsible for the alleged violations of his rights.
If plaintiff does not comply with this Order, the Court will dismiss this action. See Micklus v. Greer, 705 F.2d 314, 317 n. 3 (8th Cir. 1983).
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $29.00 within twenty-one (21) 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) that the remittance is for an original proceeding.
Prisoners must pay the full amount of the $350 filing fee. 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. The agency having custody of the prisoner will deduct the payments and forward them to the Court each time the amount in the account exceeds $10. 28 U.S.C. § 1915(b)(2). --------
IT IS FURTHER ORDERED that the Clerk is directed to send plaintiff a prisoner civil rights complaint form.
IT IS FURTHER ORDERED that plaintiff must file an amended complaint within twenty-one (21) days of the date of this Order.
If plaintiff does not comply with this Order, the Court will dismiss this action without further proceedings.
Dated this 11th day of August, 2017.
/s/_________
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE