United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. RICHARD WEBBER, Senior District Judge.
This matter is before the Court upon the motion of Travis Barnett (registration no. 1260481), an inmate at Farmington 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. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will partially dismiss the complaint and will allow plaintiff to proceed with the nonfrivolous portions of the complaint. See 28 U.S.C. 1915A(b).
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 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 support 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 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). 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 , 550 U.S. 544, 570 (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 and Title II of the Americans with Disabilities Act ("ADA"). Defendants are the Missouri Department of Corrections ("MODOC") and officials of Farmington Correctional Center. Named individual defendants are Unknown Tucker (Case Manager); S. Hinkle (Correctional Officer); Unknown Shannon (Case Manager); D. Helms (Correctional Officer); and T. Villmer (Warden).
Plaintiff asserts that he is hearing impaired and that he has been denied reasonable accommodations such as auxiliary aids. He alleges that this deprivation is in violation of his Eighth and Fourteenth Amendment rights. Plaintiff claims that he has been subject to disciplinary actions for failing to respond to alarms, announcements, and commands-all of which he could not hear. Further, plaintiff alleges that defendants have retaliated against him for requesting accommodations under the ADA by putting him in administrative segregation. Plaintiff requests injunctive relief directing defendants to provide him with auxiliary aids and directing defendants to cease retaliatory actions against him. Plaintiff additionally requests compensatory and punitive damages.
A. Section 1983 ...