Opinion
No. 4:16-CV-1660 AGF
11-16-2016
DAVID LEONARD, Plaintiff, v. DEAN MINOR, 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 $1.70, which is twenty percent of his average monthly deposit. See 28 U.S.C. § 1915(b). Additionally, the Court will order Plaintiff to submit 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 brings this action against several prison and medical officials at the Moberly Correctional Center ("MCC"). He alleges that before he was transferred to MCC his prison doctor wrote a lay-in allowing him to wear Dr. Scholl's shoes sent in by his family. He says he needed them because he got severe foot infections from the prison-issued boots.
When he arrived at MCC, his shoes were taken away. He says Defendant Maurita Jenness, a nurse, refused to let him have the shoes regardless of the lay-in written by his former doctor. He says he suffered severe foot infections as a result. He also claims to have had two heart attacks. He alleges that Jenness blocked him from seeing the doctor for five months.
Discussion
The complaint does not state whether Defendants are being sued in their official or individual capacities. Where a "complaint is silent about the capacity in which [plaintiff] is suing defendant, [a district court must] interpret the complaint as including only official-capacity claims." Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989). Naming a government official in his or her official capacity is the equivalent of naming the government entity that employs the official, in this case the State of Missouri. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). "[N]either a State nor its officials acting in their official capacity are 'persons' under § 1983." Id. As a result, the complaint fails to state a claim upon which relief can be granted.
Furthermore, with the exception of Jenness, Plaintiff has not alleged the personal involvement of the Defendants in the violations of his rights. So, the complaint fails to state a claim for this reason as well. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) ("a general responsibility for supervising the operations of a prison is insufficient to establish the personal involvement required to support liability."); George v. Smith, 507 F. 3d 605, 609 (7th Cir. 2007) ("Only persons who cause or participate in the [constitutional] violations are responsible. Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation.").
Because Plaintiff is proceeding pro se, the Court will allow him to file an amended complaint. Plaintiff is warned that the filing of an amended complaint replaces the original complaint, and so he must include each and every one of his claims in the amended complaint. E.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). Any claims from the original complaint that are not included in the amended complaint will be considered abandoned. Id. Plaintiff must allege how each and every Defendant is directly responsible for the alleged harm. In order to sue Defendants in their individual capacities, Plaintiff must specifically say so in the complaint. If Plaintiff fails to sue Defendants in their individual capacities, this action may be subject to dismissal.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's motion to proceed in forma pauperis [ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that the Plaintiff must pay an initial filing fee of $1.70 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.
IT IS FURTHER ORDERED that if Plaintiff fails to comply with this Order, the Court will dismiss this action without further proceedings.
Dated this 16th day of November, 2016.
/s/_________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE