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 plaintiff (registration no.527557), an inmate at Southeast Correctional Center ("SECC"), for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that the plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $18.94. 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 $94.69, and an average monthly balance of $22.13. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $18.94, 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).
To determine whether an action fails to state a claim upon which relief can be granted, the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950-51 (2009). These include "legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements." Id. at 1949. Second, the Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51. This is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. The plaintiff is required to plead facts that show more than the "mere possibility of misconduct." Id. The Court must review the factual allegations in the complaint "to determine if they plausibly suggest an entitlement to relief." Id. at 1951. When faced with alternative explanations for the alleged misconduct, the Court may exercise its judgment in determining whether plaintiff's proffered conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Named as defendants are: Corizon Medical Services; Michael Hakala (Doctor); and Ian Wallace (Warden, SECC). Plaintiff brings his claims against defendants "individually."
In his complaint for monetary damages, plaintiff asserts that on August 7, 2013, he was assaulted by another inmate in the main walkway by the handball court. Plaintiff claims that this area is not regularly patrolled by officers, and that the area does not have an officer assigned "during movement windows." Plaintiff states that it is a "blind spot" within the institution where inmates are known to attack and that this information is known to defendant Wallace.
Plaintiff claims that after he was attacked, he was removed from his work assignment in the Puppies for Parolees Program and placed in a maximum detention unit during an investigation into the altercation. Plaintiff asserts that he was injured during the attack, and he was initially told that he needed stitches but that because Doctor Hakala was out of the building, he was made to wait until he could arrive. He claims that Doctor Hakala never arrived at the prison to take care of his medical needs, thus, he was provided with butterfly bandages instead of stitches. He asserts that after he was bandaged, defendant Wallace came to see him and told him that he would be "released [from medical] as soon as medically cleared."
Plaintiff claims that after he was released from medical, he was taken to the maximum security unit. He alleges that he had been residing in the maximum security unit for six days when he was taken to a hearing before a committee of persons relating to the incident. He states that he was told at the hearing that the investigation was ongoing. Plaintiff states that the next day he was told by his Functional Unit Manager that he had the choice of be assigned to administrative segregation during the investigative process or being assigned to protective custody, because it was "too hot" to return him to population. Plaintiff states that approximately four days later he was placed in protective custody. Plaintiff asserts that during the month he was in protective custody he asked several times to be placed back into his prior unit so that he could return to his work assignment in the Puppies for Parolees Program. He was told on several occasions that during the investigation he needed to wait to return to his unit.
After being in protective custody for a little more than a month, plaintiff states that he was moved to a new "house" in the general population. He states that he asked to be moved to his prior "house, " or unit, but he was told that the unit was currently full. Several weeks later, when an opening in his old unit came about, plaintiff was moved to that unit. Nonetheless, plaintiff complains that he was not immediately assigned back to the Puppies for Parolees Program. Although plaintiff makes general ...