United States District Court, D. Kansas
JAMES C. STRADER, Plaintiff,
STATE OF KANSAS, et al., Defendants.
MEMORANDUM AND ORDER
L. TEETER, UNITED STATES DISTRICT JUDGE
matter is a civil rights action filed by a prisoner in state
custody. Plaintiff proceeds pro se and seeks leave to proceed
in forma pauperis. For the reasons that follow, the Court
directs plaintiff to file an amended complaint.
motion to proceed in forma pauperis
motion is governed by 28 U.S.C. § 1915(b). Because
plaintiff is a prisoner, he must pay the full $350.00 filing
fee in installment payments taken from his prison trust
account when he “brings a civil action or files an
appeal in forma pauperis[.]” § 1915(b)(1).
Pursuant to §1915 (b)(1), the court must assess, and
collect when funds exist, an initial partial filing fee
calculated upon the greater of (1) the average monthly
deposit in his account or (2) the average monthly balance in
the account for the six-month period preceding the filing of
the complaint. Thereafter, the plaintiff must make monthly
payments of twenty percent of the preceding month's
income in his institutional account. § 1915(b)(2).
However, a prisoner shall not be prohibited from bringing a
civil action or appeal because he has no means to pay the
initial partial filing fee. § 1915(b)(4).
financial records submitted by the plaintiff show deposits to
his institutional account but do not reflect the monthly
balance. Accordingly, the Court has calculated the initial
partial filing fee as $2.00, based on the average monthly
deposit of $11.25 and rounded to the lower half dollar.
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
state a claim for relief under Section 1983, a plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48-49
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however, true, could not raise a [plausible]
claim of entitlement to relief, ” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“to state a claim in federal court, a complaint must
explain what each defendant did to [the pro se plaintiff];
when the defendant did it; how the defendant's action
harmed [the plaintiff]; and what specific legal right the
plaintiff believes the defendant violated.” Nasious
v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007).
complaint, which lists 52 defendants and is supported by 159
pages of exhibits, does not comply with Rule 8 of the
Federal Rules of Civil Procedure. The twin purposes of a
complaint are (1) to give the defendants fair notice of the
claims against them so that they may respond and (2) to allow
the Court to conclude that the allegations, if proven, show
that the plaintiff is entitled to relief. See Monument
Builders of Greater Kansas City, Inc. v. American Cemetery
Ass'n of Kansas, 891 F.2d 1473, 1480 (10th Cir.
1989). Rule 8(a) states that a complaint “must contain
(1) a short and plain statement of the grounds for the
court's jurisdiction, ... (2) a short and plain statement
of the claim showing that the pleader is entitled to relief;
and (3) a demand for the relief sought.” In addition,
Rule 8(d)(1) requires that “[e]ach allegation must be
simple, concise, and direct.” The Court will direct
plaintiff to file an amended complaint that complies with the
Federal Rules of Civil Procedure.
amended complaint must be submitted upon court-approved
forms. An amended complaint is not an addendum or supplement
to the original complaint but completely
supersedes it. Therefore, any
claims or allegations not presented in the amended complaint
are no longer before the Court. Plaintiff may not simply
refer to an earlier pleading; instead, the complaint must
contain all allegations and claims that plaintiff intends to
present in the action, including those to be retained from
the original complaint. Plaintiff must include the case
number of this action on the first page of the amended
must name every defendant in the caption of the amended
complaint. See Fed. R. Civ. P. 10(a). He must refer
to each defendant in the body of the complaint and must
allege specific facts that describe the allegedly
unconstitutional acts or ...