Fenton v. Crawford et al Doc.

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Case 1:06-cv-00010-HEA Document 11 Filed 02/03/2006 Page 1 of 8

UNITED STATES DISTRICT COURT

TROY LEVON FENTON, )

ORDER AND MEMORANDUM

This matter is before the Court upon the application of

Troy Levon Fenton (registration no. 517163) for leave to commence

this action without payment of the required filing fee. For the

reasons stated below, the Court finds that plaintiff does not have

sufficient funds to pay the entire filing fee and will assess an

initial partial filing fee of $13.82. See 28 U.S.C. § 1915(b)(1).

Furthermore, having carefully reviewed the file, the Court will

order plaintiff to file a second amended complaint within thirty

(30) days from the date of this order, as more fully set forth

below.

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

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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. See 28 U.S.C.

§ 1915(b)(1). 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. See

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, until the filing

fee is fully paid. Id.

Applicant has submitted an affidavit and a certified copy

of his prison account statement for the six-month period

immediately preceding the submission of his complaint on January

19, 2006. See 28 U.S.C. § 1915(a)(1),(2). A review of applicant's

account statement indicates an average monthly deposit of $69.08,

and an average monthly account balance of $37.00. Applicant has

insufficient funds to pay the entire filing fee. Accordingly, the

Court will assess an initial partial filing fee of $13.82 which is

20 percent of applicant's average monthly deposit.

28 U.S.C. § 1915(e)

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may

dismiss a complaint filed in forma pauperis at any time if the

action is frivolous, malicious, fails to state a claim upon which

relief can be granted, or seeks monetary relief against a defendant

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who is immune from such relief. An action is frivolous if "it

lacks an arguable basis either in law or in fact." Neitzke v.

Williams, 490 U.S. 319, 325 (1989). An action fails to state a

claim upon which relief may be granted if it appears beyond

reasonable doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief. Conley v.

Gibson, 355 U.S. 41, 45-46 (1957); Jackson Sawmill Co. v. United

States, 580 F.2d 302, 306 (8th Cir. 1978), cert. denied, 439 U.S.

1070 (1979).

In reviewing a pro se complaint under § 1915(e)(2)(B),

the Court must give the complaint the benefit of a liberal

construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The

Court must also weigh all factual allegations in favor of the

plaintiff, unless the facts alleged are clearly baseless. Denton

v. Hernandez, 112 S. Ct. 1728, 1733 (1992); Scheuer v. Rhodes, 416

U.S. 232, 236 (1974).

The complaint and amended complaint

Plaintiff, an inmate at the Southeast Correctional

Center, seeks monetary and injunctive relief pursuant to 42 U.S.C.

§ 1983 against approximately thirty-eight named defendants. On

January 31 and February 2, 2006, plaintiff filed motions to amend

his complaint [Doc. #7 and Doc. #10], as well as an amended

complaint [Doc. #8] in which he seeks to "release/dismiss D. Horn"

and to amend piecemeal numerous paragraphs of his original

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complaint. Neither the original nor the first amended complaint

was submitted on the court-provided form for filing a complaint

pursuant to 42 U.S.C. § 1983.

A review of the instant action indicates that although

plaintiff may be able to assert constitutional claims that survive

review under 28 U.S.C. § 1915(e)(2)(B), he has failed to set forth

as to each named defendant the specific factual allegations

supporting his claim against each particular defendant. "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) (claim not cognizable under § 1983

where plaintiff fails to allege defendant was personally involved

in or directly responsible for incidents that injured plaintiff);

Glick v. Sargent, 696 F.2d 413, 414-15 (8th Cir. 1983) (respondeat

superior theory inapplicable in § 1983 suits).

Moreover, the Federal Rules of Civil Procedure require

litigants to formulate their pleadings in an organized and

comprehensible manner. Even pro se litigants are obligated to

plead specific facts and proper jurisdiction and must abide by the

Federal Rules of Civil Procedure; however, plaintiff has failed to

do so in this case. See U.S. v. Wilkes, 20 F.3d 651, 653 (5th Cir.

1994); Boswell v. Honorable Governor of Texas, 138 F.Supp.2d 782,

785 (N.D. Texas 2000); Fed.R.Civ.P. 8(a)(2)(complaint should

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contain “short and plain statement” of claims); Fed.R.Civ.P.

8(e)(2)(each claim shall be “simple, concise, and direct”);

Fed.R.Civ.P. 10(b)(parties are to separate their claims within

their pleadings “the contents of which shall be limited as far as

practicable to a single set of circumstances”). Although the Court

is to give plaintiff’s complaint the benefit of a liberal

construction, the Court will not create facts or claims that have

not been alleged. Plaintiff is required, to the best of his

ability, to set out not only his alleged claims in a simple,

concise, and direct manner, but also the facts supporting his

claims as to each named defendant. Because plaintiff has failed to

do so, the Court is unable to determine which claims, if any, are

frivolous or fail to state a claim.

Taking into consideration the fact that plaintiff is

proceeding pro se and in forma pauperis, the Court will grant him

time to file a second amended complaint on the court-provided form

for filing a complaint pursuant to 42 U.S.C. § 1983, in accordance

with the instructions set forth below. Moreover, because the Court

is allowing plaintiff to amend his complaint, it will take no

action as to the named defendants at this time. Plaintiff is

reminded that his second amended complaint will supersede his

original complaint [Doc. #1] and first amended complaint [Doc. #8]

and will be the only complaint this Court reviews. Thus, plaintiff

must include in the "Caption" of the second amended complaint all

the defendants he wishes to sue; and in the "Statement of Claim,"

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he must set out specific facts against each named defendant in a

simple, concise, and direct manner. Plaintiff risks dismissal of

the instant action if he fails to comply with this Court's

instructions.

In accordance with the foregoing,

IT IS HEREBY ORDERED that plaintiff's motion for leave to

proceed in forma pauperis [Doc. #3] is GRANTED.

IT IS FURTHER ORDERED that plaintiff shall pay an initial

partial filing fee of $13.82 within thirty (30) days from 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.

IT IS FURTHER ORDERED that the Clerk shall not issue

process or cause process to issue upon the complaint.

IT IS FURTHER ORDERED that plaintiff's motions to amend

his complaint [Doc. #7 and Doc. #10] are DENIED as moot, given that

this Court is granting plaintiff additional time in which to file

a second amended complaint, and Rule 15(a) of the Rules of Federal

Procedure states that a plaintiff may file an amended complaint

once as a matter of course at any time before a responsive pleading

is served.

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IT IS FURTHER ORDERED that plaintiff shall file a second

amended complaint within thirty (30) days from the date of this

order. In the second amended complaint, plaintiff shall complete

in its entirety the court-provided form for filing a complaint

pursuant to 42 U.S.C. § 1983.1 Specifically, in the "Caption" of

the form complaint, plaintiff shall set forth the name of each

defendant he wishes to sue; and in the "Statement of Claim," he

shall set forth as to each named defendant the specific factual

allegations supporting his claim against the particular defendant,

as well as the specific rights that he claims the defendant

violated. If plaintiff needs additional space to list all the

defendants or to set out his claims against each defendant, he must

attach additional sheets of paper to the second amended complaint

and clearly identify them as part of his Caption or Statement of

Claim.

IT IS FURTHER ORDERED that, in addition to a copy of this

Order, the Clerk shall forward to plaintiff the court-provided form

for a prisoner to file a "Complaint Under the Civil Rights Act, 42

U.S.C. § 1983."

IT IS FURTHER ORDERED that plaintiff's failure to amend

his complaint in accordance with this Court's instructions will

result in the dismissal of this action, without prejudice.

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The Court will instruct the Clerk of Court to provide
plaintiff with the proper form.

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IT IS FURTHER ORDERED that upon the filing of a second

amended complaint, the Clerk shall resubmit this action to the

Court for review pursuant to 28 U.S.C. § 1915(e).

Dated this 3rd day of February, 2006.

______________________________
UNITED STATES DISTRICT JUDGE