Wilson v. Precynthe

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION SHERRON WILSON, ) ) Plaintiff, ) ) v. ) No. 4:19-cv-2293-ACL ) ANNE PRECYTHE, ) ) Defendant. ) MEMORANDUM AND ORDER This matter is before the Court upon review of a complaint and other documents filed by plaintiff Sherron Wilson, an inmate at the Potosi Correctional Center (PCC). For the reasons explained below, the Court will allow plaintiff to proceed in forma pauperis in this action, and will assess an initial partial filing fee of $171.48. Additionally, the Court will give plaintiff the opportunity 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 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 sixmonth 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 the case at bar, plaintiff filed a motion to appoint counsel in which he averred he was impoverished and unable to pay a reasonable attorney fee. He also filed a document explaining that he did not know how to pay the filing fee and asking the Court to debit his account, which the Court cannot do. Finally, plaintiff submitted a certified inmate account statement showing an average monthly deposit of $27.01 and an average monthly balance of $857.42. The Court will construe plaintiff’s filings as a request for leave to proceed in forma pauperis, and will allow him to do so. The Court will also assess an initial partial filing fee of $171.48, which is twenty percent of plaintiff’s average monthly balance. 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 may be granted. An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon which relief may be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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 assume the veracity of well-pleaded facts, but need not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555 ). This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429 U.S. 97, 106 (1976). This means that “if the essence of an allegation is discernible,” the court should “construe the complaint in a way that permits the layperson’s claim to be considered within the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even pro se complaints must 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). Federal courts are not required to assume facts that are not alleged, Stone, 364 F.3d at 914-15 , nor are they required to interpret procedural rules 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 brings this action pursuant to 42 U.S.C. § 1983 against Anne Precythe, the Director of the Missouri Department of Corrections. He sues Precythe in her individual and official capacity. Plaintiff writes: “I keep getting physically and verbally sexually harassed in every level and department of correction I go to.” He alleges that every cellmate physically and/or verbally abuses him, sexually harasses him, or does all of those things. He alleges he was raped on “June the 5th by an inmate that the staff let rape me in front of Housing Unit number four,” and that because of this, plaintiff had to be transferred. Plaintiff alleges there is “a guy on the streets” who pays people in institutions to treat him this way. Plaintiff identifies two gangs, and he names prior cellmates who have subjected him to various forms of abuse. He alleges “[t]hey pay the inmates by letting them have sex with the nurses,” and he identifies the people involved. He states he did not receive medical treatment after he was raped. He does not clearly identify the relief he seeks from this Court, but he does state he wants to be housed in a single cell or placed in protective custody. Discussion Plaintiff has named Precythe as the defendant in this matter. However, plaintiff does not allege she was directly involved in any incident that harmed him or in anything that could be said to have given rise to such an incident, or that she was aware of any such incident. Instead, plaintiff’s allegations against Precythe sound in respondeat superior. “Liability under § 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (to be cognizable under § 1983, a claim must allege that the defendant was personally involved in or directly responsible for the incidents that deprived the plaintiff of his constitutional rights). Claims sounding in respondeat superior are not cognizable under § 1983. Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995). Plaintiff also fails to specify exactly when the alleged incidents occurred. The Court concludes that plaintiff has failed to state a claim upon which relief may be granted against Precythe, and the complaint is therefore subject to dismissal pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii). Because plaintiff is proceeding pro se, the Court will give him the opportunity to file an amended complaint. Plaintiff is advised that the amended complaint will replace the original complaint. See In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005) (“It is well-established that an amended complaint supersedes an original complaint and renders the original complaint without legal effect”). Plaintiff must type or neatly print the amended complaint on the Court’s prisoner civil rights complaint form, which will be provided to him. See E.D. Mo. L.R. 45 – 2.06(A) (“All actions brought by pro se plaintiffs or petitioners should be filed on Court-provided forms”). In the “Caption” section of the complaint form, plaintiff should write the name of the person 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 specify the capacity in which he intends to sue the defendant. 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). Plaintiff must clearly state when and where the alleged harm occurred, and he must also clearly specify the relief he seeks from this Court. If plaintiff names a single defendant, he may set forth as many claims as he has against that defendant. See Fed. R. Civ. P. 18(a). If plaintiff names more than one defendant, he should only include claims that arise out of the same transaction or occurrence, or simply put, claims that are related to each other. See Fed. R. Civ. P. 20(a)(2). It is important that plaintiff allege facts explaining how the defendant was personally involved in or directly responsible for harming him. See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). Plaintiff must explain the role of the defendant, so that the 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). Accordingly, IT IS HEREBY ORDERED that plaintiff may proceed in forma pauperis in this action. IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $171.48 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 the Clerk is directed to mail to plaintiff a copy of the Court’s prisoner civil rights complaint form. IT IS FURTHER ORDERED that plaintiff must file an amended complaint within thirty (30) days from the date of this Order. Plaintiff’s failure to timely comply with this order may result in the dismissal of this case, without prejudice and without further notice. Dated this 18" day of October, 2019. Untri bita Leen ABBIE CRITES-LEONI UNITED STATES MAGISTRATE JUDGE