Phillips v. Bittick

• Court: District Court, E.D. Missouri
• Decided: January 10, 2024
• Docket: 4:24-cv-00048
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

CLINT PHILLIPS, III, ) ) Plaintiff, ) ) v. ) No. 4:24-CV-00048 RWS ) OFFICER UNKNOWN BITTICK, et al. ) ) Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court upon review of plaintiff’s handwritten complaint. The complaint is defective because, among other things, it was not drafted on the Court’s form. See E.D. Mo. Local Rule 2.06(A). In addition, plaintiff has neither paid the $402 filing fee nor filed a motion for leave to proceed in forma pauperis.1 Because plaintiff is proceeding pro se, the Court will allow him to file an amended complaint on the Court’s form. Plaintiff has twenty-one (21) days from the date of this Order to file an amended complaint in accordance with the specific instructions set forth here. All claims in the action must be included in one, centralized complaint form. See Fed. R. Civ. P. 7(a)(1), 8(a).

1A motion for leave to proceed in forma pauperis should be filed on a Court form and should be accompanied by a statement of the applicant’s financial information. A certified copy of plaintiff’s inmate account statement for the six-month period immediately preceding the filing of the complaint is required by 28 U.S.C. § 1915(a)(2). Alternatively, plaintiff may pay the full $402 filing fee in this action. A review of this Court’s files shows that plaintiff has previously brought at least three civil actions that were dismissed on grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. See Phillips v. St. Louis City Police Officers, No. 4:17-cv-1637-HEA (E.D. Mo. Jan. 10, 2018); Phillips v. Romeo, No. 4:17-cv-1636-NAB (E.D. Mo. Aug. 4, 2017); Phillips v. City of St. Louis, No. 4:11- cv-791-CEJ (E.D. Mo. May 19, 2011). Therefore, the Court cannot permit plaintiff to proceed in forma pauperis unless he “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). There is no indication in the currently filed complaint that he is under imminent danger. Based on a review of cases previously filed by plaintiff, it appears that the allegations raised in the present action could be the same, or substantially similar, to those in other suits before this Court. Plaintiff’s amended complaint should be clear on how the claims raised in this matter differ from those being considered in other cases in this Court. In addition, plaintiff is warned that the filing of an amended complaint replaces the original

complaint and all previously-filed pleadings, so plaintiff must include each and every one of the claims he wishes to pursue in the amended complaint. See, 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, supplements, and/or pleadings that are not included in the amended complaint will be deemed abandoned and will not be considered. Id. The allegations in the complaint may not be conclusory. Instead, plaintiff must plead facts that show how each and every defendant he names is personally involved in or directly responsible for the alleged harm. If plaintiff wishes to sue a defendant in his or her individual capacity, plaintiff must specifically say so in the amended complaint. If plaintiff fails to sue a defendant in his or her individual capacity, this action may be

subject to dismissal as to that defendant. All of plaintiff’s claims should be clearly set forth in the “Statement of Claim.” If plaintiff fails to file an amended complaint on the Court’s form within twenty-one (21) days and in compliance with the Court’s instructions, the Court will dismiss this action without prejudice and without further notice. Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall mail to plaintiff copies of the Court’s Prisoner Civil Rights Complaint form and Motion to Proceed in Forma Pauperis – Prisoner Cases form. IT IS FURTHER ORDERED that, within twenty-one (21) days of the date of this Order, plaintiff shall file an amended complaint on the Court-provided form and in compliance with the Court’s instructions. IT IS FURTHER ORDERED that, within twenty-one (21) days of the date of this Order, plaintiff shall either pay the filing fee or submit a motion to proceed in forma pauperis on the Court-provided form. If plaintiff files a motion to proceed in forma pauperis, he shall also submit a certified copy of his inmate account statement for the six-month period immediately preceding the filing of the complaint. IT IS FURTHER ORDERED that if plaintiff fails to file a motion to proceed in forma pauperis, along with his account statement, within twenty-one (21) days of the date of this Order, he is responsible for paying the $402 filing fee. IT IS FURTHER ORDERED that plaintiffs failure to timely comply with this Order shall result in the dismissal of this action, without prejudice and without further notice. Dated this 10th day of January, 2024.

UNITED STATES DISTRICT JUDGE