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Shepard v. Cape Girardeau Sheriff's Office

Feb 23, 2021
No. 1:21-cv-21-SNLJ (E.D. Mo. Feb. 23, 2021)


No. 1:21-cv-21-SNLJ




This matter is before the Court on the motion of plaintiff Jacob Taylor Shepard, an inmate at the Eastern Reception, Diagnostic and Correctional Center ("ERDCC"), for leave to commence this civil action without prepaying fees or costs. Having reviewed the motion and the financial information submitted in support, the Court has determined to grant the motion, and assess an initial partial filing fee of $1.70. Additionally, for the reasons discussed below, 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 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 his 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 account exceeds $10.00, until the filing fee is fully paid. Id.

Plaintiff did not submit a certified inmate account statement in support of the instant motion, and he describes experiencing confusion regarding what to submit to the Court. Rather than hold the instant motion in abeyance and direct plaintiff to file a certified inmate account statement, the Court will simply assess an initial partial filing fee of $1.00 at this time. However, any claim that plaintiff is unable to pay that amount must be supported by a certified copy of his institution account statement.

Legal Standard on Initial Review

This Court is required to review a complaint filed in forma pauperis to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). This Court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). 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 is facially plausible 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's complaint does not clearly identify the defendants. However, in the Application to Proceed in District Court Without Prepaying Fees or Costs plaintiff submitted with the complaint, he identifies the defendants as the Cape Girardeau Sheriff's Office and St. Francis Hospital. The case at bar is the second of two prisoner civil rights cases plaintiff has recently filed in this Court against those entities. The first is Shepard v. Cape Girardeau County Jail and St. Francis Medical Center, No. 1:20-cv-186-MTS (E.D. Mo. Aug. 24, 2020). There, plaintiff filed a complaint on August 24, 2020, and filed an amended complaint on January 8, 2021 after being directed to do so by the Court. As of the date of this order, it has not been determined whether the amended complaint survives initial review, no defendant has been served with process, and the matter remains pending.

In the instant complaint, plaintiff references numerous instances of alleged violations of his constitutional rights. Plaintiff does not clearly state where each instance of misconduct took place, nor does he clearly identify the person or persons responsible. Instead, plaintiff mostly refers to the responsible individuals as "medical staff," "the COs," or "they," without alleging sufficient facts to permit the identification of any individual following discovery. In setting forth his claims for relief, plaintiff describes a wide range of misconduct. Such misconduct includes shoving, denial of medical attention for complaints related to chest pain and diarrhea, rat poison in the food, difficulties with mail service, and having his cell door opened. Plaintiff sets forth his allegations in the form of a long and rambling narrative instead of alleging facts that could be construed as stating a plausible claim for relief. Because of the manner in which plaintiff prepared the instant complaint, the Court is unable to either identify the proper defendants, or discern plaintiff's actual claims for relief.

The Court will give plaintiff the opportunity to file an amended complaint to clearly set forth his claims. The amended complaint will replace the original. 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. 2.06(A) ("All actions brought by self-represented plaintiffs or petitioners should be filed on Court-provided forms where applicable.").

In the "Caption" section of the complaint form, plaintiff should write the name of the defendant 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 of the form complaint, 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). 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 causing harm. 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).

Plaintiff has also filed a motion to appoint counsel. The Court will deny the motion at this time, without prejudice. A pro se litigant has no statutory or constitutional right to have counsel appointed in a civil case. Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013), Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). However, a court may appoint counsel in a civil case if it 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). Factors relevant to such determination are the complexity of the case, the ability of the pro se litigant to investigate the facts, the existence of conflicting testimony, and the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006).

After considering the relevant factors, the Court concludes the appointment of counsel is unwarranted at this time. First, plaintiff has not yet stated a nonfrivolous claim. Additionally, there is no indication that this case is factually or legally complex, nor is there any indication that plaintiff will be unable to investigate the facts. Also, the motion is premature. The Court will therefore deny the motion for the appointment of counsel without prejudice, and will entertain future motions for the appointment of counsel, if appropriate, as this litigation progresses.


IT IS HEREBY ORDERED that plaintiff's motion seeking leave to commence this action without prepaying fees or costs (ECF No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 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.

IT IS FURTHER ORDERED that plaintiff's motion to appoint counsel (ECF No. 3) is DENIED without prejudice.

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 23rd day of February, 2021.




Summaries of

Shepard v. Cape Girardeau Sheriff's Office

Feb 23, 2021
No. 1:21-cv-21-SNLJ (E.D. Mo. Feb. 23, 2021)
Case details for

Shepard v. Cape Girardeau Sheriff's Office

Case Details



Date published: Feb 23, 2021


No. 1:21-cv-21-SNLJ (E.D. Mo. Feb. 23, 2021)