United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
HENRY EDWARD AUTREY, District Judge.
This matter is before the Court upon the motion of Steven Ide, an inmate at the St. Louis Medium Security Institution ("MSI"), 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 $18. See 28 U.S.C. § 1915(b)(1). Additionally, the Court finds that the complaint does not state a claim upon which relief can be granted, and the Court will give plaintiff an opportunity to file an amended 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 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 $90, and an average monthly balance of $28. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $18, which is 20 percent of plaintiff's average monthly deposit.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must 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 from a defendant who is immune from such relief. An action is frivolous if it Alacks an arguable basis in either law or fact.@ Neitzke v. Williams , 490 U.S. 319, 328 (1989); Denton v. Hernandez , 504 U.S. 25, 31 (1992). An action is malicious if it is undertaken for the purpose of harassing the named defendants and not for the purpose of vindicating a cognizable right. Spencer v. Rhodes , 656 F.Supp. 458, 461-63 (E.D. N.C. 1987), aff=d 826 F.2d 1059 (4th Cir. 1987). A complaint fails to state a claim if it does not plead Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007).
Plaintiff brings this action under 42 U.S.C. § 1983 against Corizon, a prison healthcare company. Plaintiff alleges that he has had problems with his left ear, including bleeding and hearing loss. Plaintiff says he informed Corizon medical staff about the problem on March 30, 2014. He claims that he did not see a doctor until May 19, 2014, despite seeing nursing staff on April 20, 2014, and complaining about his ear problems. Plaintiff claims that the delay in treatment caused permanent damage to his ear.
To state a claim for medical mistreatment, plaintiff must plead facts sufficient to indicate a deliberate indifference to serious medical needs. Estelle v. Gamble , 429 U.S. 97, 106 (1976); Camberos v. Branstad , 73 F.3d 174, 175 (8th Cir. 1995). Allegations of mere negligence in giving or failing to supply medical treatment will not suffice. Estelle , 429 U.S. at 106. In order to show deliberate indifference, plaintiff must allege that he suffered objectively serious medical needs and that defendants actually knew of but deliberately disregarded those needs. Dulany v. Carnahan , 132 F.3d 1234, 1239 (8th Cir. 1997). In order to state a claim against Corizon, plaintiff must allege that there was a policy, custom or official action that caused an actionable injury. Sanders v. Sears Roebuck & Co. , 984 F.2d 972, 95-76 (8th Cir. 1993). Plaintiff has not alleged that an official policy of Corizon caused his ear injury. As a result, the complaint does not state a claim for relief under § 1983.
Because plaintiff is proceeding pro se, the Court will allow plaintiff to file an amended complaint in order to cure the defects in the original complaint. Plaintiff shall have thirty days from the date of this Order to file an amended complaint. Plaintiff is warned that the filing of an amended complaint replaces the original complaint, and claims that are not realleged are deemed abandoned. E.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation , 396 F.3d 922, 928 (8th Cir. 2005). Plaintiff should name as defendants the individuals who are alleged to be responsible for his injury, and he should describe how each defendant contributed to the injury. If plaintiff fails to file an amended complaint within thirty days, the Court will dismiss this action without prejudice.
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis ...