United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RODNEY W. SIPPEL, District Judge.
This matter is before the Court upon the motion of plaintiff Fredrick Baldwin (registration no. 1213912), an inmate at Western Missouri Correctional Center ("WMCC"), 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 $39.03. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will partially dismiss the complaint and will order the Clerk to issue process or cause process to be issued on the non-frivolous portions of 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 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 $195.17, and an average monthly balance of $51.34. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $39.03, 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 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, an inmate at WMCC, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights which allegedly occurred during his incarceration at Eastern Reception, Diagnostic and Correctional Center ("ERDCC"). Plaintiff also asserts claims under the Americans with Disabilities Act and the Rehabilitation Act. Named as defendants are Correctional Officer Owens and Classification Caseworker Doe.
Plaintiff claims that he entered ERDCC on May 24, 2012, with medical restrictions as a result of his diabetes. He states that he has severe neuropathy in both legs and requires assignment to a lower bunk. Plaintiff asserts that he told Jane/John Doe, the Classification Caseworker who assigned him to a bunk about his medical restrictions, but that his request for a lower bunk was denied. He asserts that he also complained to Correctional Officer Owen about his inability to get up to the top bunk due to the neuropathy in his legs, but he was told to get up to the top bunk or else he would be given a conduct violation.
Plaintiff claims that as a result of the awkward way in which he had to pull himself up to the top bunk due to his medical problems, he got his testicles caught in the bed frame. He asserts that as a result of the damage done, he had to have emergency surgery to repair his testicles, and he now has a permanent injury as a result.
Plaintiff names defendants in their individual ...