This matter is before the Court upon the motion of Christopher Franklin (registration no. 1136674) for leave to commence this action without payment of the required filing fee [Doc. #2].
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 or her 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 the prisoner's 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 prisoner's account exceeds $10, until the filing fee is fully paid. Id.
Plaintiff 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. A review of plaintiff's account indicates an average monthly deposit of $120.50, and an average monthly balance of $.14. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $24.10, which is 20 percent of plaintiff's average monthly balance.
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. An action is frivolous if "it lacks an arguable basis in either law or in fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989).
To determine whether an action fails to state a claim upon which relief can be granted, the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the complaint that are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950-51 (2009). These include "legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements." Id. at 1949. Second, the Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51. This is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. The plaintiff is required to plead facts that show more than the "mere possibility of misconduct." Id. The Court must review the factual allegations in the complaint "to determine if they plausibly suggest an entitlement to relief." Id. at 1951. When faced with alternative explanations for the alleged misconduct, the Court may exercise its judgment in determining whether plaintiff's proffered conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.
Plaintiff, an inmate at the Northeast Correctional Center, seeks monetary and injunctive relief in this action brought pursuant to 42 U.S.C. §§ 1983 and 1985 for alleged constitutional violations that occurred while he was incarcerated at the Farmington Correctional Center (FCC). Named as defendants are Charles L. Mosley (an FCC inmate), Jeremiah W. Nixon (Governor of the State of Missouri), George A. Lombardi (Director, Missouri Department of Corrections (MDOC)), Tom Villmer (FCC warden), Tom L. King (FCC investigator), James O. Reed (FCC correctional staff), Allen Luebbers (FCC warden), Michael White (FCC caseworker), Dennis Mayberry (FCC correctional staff), Larry Bayyon (FCC employee), CO-I John/Jane Does #1 thru #4 (FCC correctional officers), CO-II John/Jane Doe #1 (FCC correctional officer sergeant), and Unknown Young (FCC caseworker).*fn1
A. Eighth Amendment Failure-to-Protect Claims against Defendants Reed, White, Mayberry, Bayyon, CO-I John/Jane Does #1 thru #4, CO-II John/Jane Doe #1, and Unknown Young Plaintiff alleges that, on November 14, 2008, at approximately 5:30 p.m., defendants Reed, White, Mayberry, Bayyon, CO-I John/Jane Does #1 thru #4, CO-II John/Jane Doe #1, and Unknown Young "knowingly failed to protect [him] from the substantial risk of serious harm of assault and battery by defendant Charles L. Mosley," after having informed them that Mosley "was stalking and threatening [him] with sexual assault." Plaintiff claims that these defendants let Mosley into plaintiff's cell, "where defendant Mosley forcibly assaulted and sodomized plaintiff . . . against his will and resistance." Thereafter, the Doe defendants allegedly "let [Mosley] out of plaintiff's cell, to go to [his] assigned wing and cell." The Court finds that plaintiff's § 1983 claims are sufficient to proceed against defendants Reed, White, Mayberry, Bayyon, CO-I John/Jane Does #1 thru #4, CO-II John/Jane Doe #1, and Unknown Young at this time. The Court will order said defendants to respond to these failure-to-protect allegations.
B. "Tacit Authorization" Claims against Defendants Nixon, Lombardi, Villmer, Luebbers, and King Plaintiff alleges that defendants Nixon, Lombardi, Villmer, Luebbers, and King "through their tacit authorization of turning a blind eye to cell robbery(s), offender robbery(s), assault(s), and rape(s) of offender(s)," failed to "take action" to stop these offenses. Plaintiff alleges that these defendants had been made aware of the offenses through the grievance procedure.
The plaintiff does not allege that he was a victim of robbery within the prison or that he was deprived of any personal property. Therefore, his claim that the defendants ...