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 Doug Stinson, an inmate at the Dunklin County Justice Center ("Justice 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 $7.00. See 28 U.S.C. § 1915(b)(1). Additionally, the Court will require plaintiff to file a second 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 $35.00, and an average monthly balance of less than $35.00. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $7.00, 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 "lacks 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 "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).
Plaintiff brings this action under 42 U.S.C. § 1983. In his amended complaint, sues Bob Holder (Sheriff, Dunklin County), Wally Pointer (Chief Deputy), Nicole Green (Administrator), Tammy Fraine (Assistant Administrator), Christy Preston (Correctional Officer), Connor Hanson (Correctional Officer), Kyle Simms (Correctional Officer), Dr. Haq (Physician), Ashely Grisham (Nurse), Dave Pierce (Correctional Officer), Ryan Wilson (Correctional Officer), and Roy Cato (Maintenance Technician).
Plaintiff alleges that on February 10, 2014, he tripped on a piece of loose flooring as he was stepping out of the shower and fell. He says defendant Pierce saw him fall. And he claims that the floor was fixed by defendant Cato.
On February 21, 2014, says plaintiff, he tripped again over the same piece of flooring. He asserts that he hit his head on the corner of a table, which caused him to lose eyesight and hearing as well as turning half of his face numb.
Plaintiff alleges that he asked defendant Simms to send him to the emergency room but that Simms refused. Plaintiff says Simms's supervisor, defendant Green, also refused the request.
On the following day, plaintiff was taken to the hospital. Plaintiff says defendant Haq ordered that he only be checked for fractures. Plaintiff was given crutches and a temporary cast, in part as a result of previous injuries sustained in a car accident. A day or two later, defendant Haq examined plaintiff and told him he was healed, taking the crutches and cast away. Plaintiff maintains that he asked Haq to give him tests for the numbness in his face but Haq said the tests were too expensive.
Plaintiff avers that he continues to have damage to his eyesight and hearing as well as ...