United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This matter is before the Court upon the motion of Dalton Beyer (registration no. 1232356), an inmate at Southeast Correctional Center, for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will order the Clerk to issue process or cause process to be issued on the 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 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 not submitted a prison account statement. As a result, the Court will require plaintiff to pay an initial partial filing fee of $1.00. See Henderson v. Norris , 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the Court with a certified copy of his prison account statement, the Court should assess an amount "that is reasonable, based on whatever information the court has about the prisoner's finances."). If plaintiff is unable to pay the initial partial filing fee, he must submit a copy of his prison account statement in support of his claim.
28 U.S.C. § 1915(e)
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). An 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 , 127 S.Ct. 1955, 1974 (2007).
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner , 404 U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez , 504 U.S. 25, 32-33 (1992); Scheuer v. Rhodes , 416 U.S. 232, 236 (1974).
Plaintiff brings this action under 42 U.S.C. § 1983 against correctional officer Randy Woods for alleged retaliation in violation of the First Amendment. Plaintiff sues Woods in both his individual and official capacity.
Plaintiff alleges that on March 10, 2014, he was kicking his cell door. Defendant Woods told plaintiff to stop kicking the door or he would spray plaintiff with mace. Plaintiff continued kicking the door and told Woods, "if your [sic] going to spray me then do it." Plaintiff says Woods attempted to spray mace through the food port but plaintiff blocked the food port with his body. Plaintiff avers that Woods then pushed his arm through the food port to spray plaintiff. Plaintiff says he pinned Woods's arm against the cell door with his body and Woods dropped the mace in the cell. Plaintiff claims he picked up the mace and handed it to the officers outside the cell. Plaintiff alleges that he asked Woods if he was sprayed with mace and Woods replied "no."
According to the exhibits attached to the complaint, Woods wrote a conduct violation on March 10, 2014, for assault on an officer. In the conduct violation, Woods claimed that plaintiff grabbed his arm through the food port and pinned it. Woods did not claim that plaintiff used the pepper spray against him.
In April 2014 plaintiff filed an informal resolution request complaining about the conduct violation. Plaintiff claimed that Woods placed his arm in the food port and dropped the mace canister. The informal resolution request was not resolved.
On May 5, 2014, Woods rewrote the conduct violation regarding the March 10, 2014, incident. In the new conduct violation, Woods claimed that plaintiff grabbed his arm, pulling it into the food port and trapping it. Woods further claimed that plaintiff took the mace canister out of his hand and sprayed him with it. Woods claimed that he rewrote the conduct violation for a "technical" reason. The ...