United States District Court, E.D. Arkansas, Jonesboro Division
VOLPE, UNITED STATES MAGISTRATE JUDGE
Rice ("Plaintiff) is incarcerated at the Poinsett County
Detention Center and filed this actionpro se
pursuant to 42 U.S.C. § 1983. (Doc.No.4.) Initially it
appeared Plaintiff intended this cause of action to be a
petition for writ of habeas corpus. (Doc. No. 1.) So I
ordered Plaintiff to state how he wished to proceed and
provided a 42 U.S.C. § 1983 complaint form.
(Id.) Plaintiff filed an Amended Complaint pursuing
a § 1983 cause of action. (Doc. No. 4.) Plaintiff
alleges, inter alia, he is not receiving necessary
medical care. (Id. at 4-6.)
Prison Litigation Reform Act requires federal courts to
screen prisoner complaints seeking relief against a
governmental entity, officer, or employee. 28U.S.C. §
1915A(a). The court must dismiss a complaint or portion
thereof if the prisoner has raised claims that: (a) are
legally frivolous or malicious; (b) fail to state a claim
upon which relief may be granted; or (c) seek monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
action fails to state a claim upon which relief can 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). The
factual allegations must be weighted in favor of Plaintiff.
Denton v. Hernandez, 504 U.S. 25, 32 (1992).
"In other words, the § 1915(d) frivolousness
determination, frequently made sua sponte before the
defendant has even been asked to file an answer, cannot serve
as a factfinding process for the resolution of disputed
facts." Id. But regardless of whether a
plaintiff is represented or appearing/?ro se, his
"complaint must contain specific facts supporting its
conclusions." See Martin v. Sargent, 780 F.2d
1334, 1337 (8th Cir. 1985).
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. Twombly, 550 U.S. at 556. The plausibility
standard is not akin to a "probability requirement,
" but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads
facts that are "merely consistent with" a
defendant's liability, it "stops short of the line
between possibility and plausibility" of entitlement to
relief. Id. at 557.
42 of the United States Code, section 1983 allows an
individual to bring suit against persons who, under color of
state law, have caused him to be "depriv[ed] of any
rights, privileges, or immunities secured by the Constitution
and laws" of the United States. 42 U.S.C. § 1983
(1996). Section 1983 itself "creates no substantive
rights; it merely provides remedies for deprivation of rights
established elsewhere." City of Oklahoma City v.
Tuttle, 471 U.S. 808, 816 (1985) (citations omitted). In
order to state a claim pursuant to 42 U.S.C. § 1983, a
plaintiff must allege two essential elements: (1) that a
right secured by the Constitution or laws of the United
States was violated, and (2) that the alleged violation was
committed by a person acting under the color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).
PLAINTIFF'S AMENDED COMPLAINT
says Mike Kindall was the head administrator when the events
began. (Doc. No. 4 at 4.) Plaintiff never explains the
actions or inactions of Defendant Kindall, and a close
reading of his Complaint leads me to believe he wishes to
hold Defendant Kindall liable as the jail supervisor. But
allegations against Defendant Kindall because of his
supervisory position are not actionable. SeeParrish v.
Ball, 594 F.3d 993, 1001 (8th Cir. 2010) (holding that,
in a section 1983 action, supervisory defendants are not
vicariously liable for the actions of their subordinates).
Plaintiff fails to allege any specific misconduct against
Defendants Muse or Cox. (Doc. No. 4 at 4-6.) Instead,
Plaintiff lists his allegations and then says, "All this
applys [sic] to the following . . . Kim Muse, and Susan Cox
..." (Id. at 6.) Without more, these
allegations fail to state a claim upon which relief can be
granted. Bell Atlantic Corp., 550 U.S. at570 (a
plaintiff must plead "enough facts to state a claim to
relief that is plausible on its face").
Plaintiffs Amended Complaint fails to state a claim upon
which relief may be granted. Plaintiff, if he chooses, may
submit within thirty (30) days of the date of this Order, a
superseding Amended Complaint which contains all of his
claims against all defendants he is suing in a single
document. Any instances of personal involvement by Defendants
Kindall, Muse, and Cox in any of Plaintiffs alleged harms
should be included in his Amended Complaint.
is cautioned that another Amended Complaint renders his
original Amended Complaint without legal effect. Only claims
properly set out in the Second Amended Complaint will be
allowed to proceed. Therefore, Plaintiffs Second Amended
Complaint should 1) name all the parties he believes deprived
him of his constitutional rights and whom he wishes to sue in
this action; 2) provide specific facts against each named
defendant in a simple, concise, and direct manner, including
dates, times, and places, if applicable; 3) indicate whether
he is suing each defendant in his/her individual or official
capacity, or in both capacities; 4) how Plaintiff was harmed;
and 5) state whether he was incarcerated at the time as a