United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RONNIE L. WHITE, District Judge.
This matter is before the Court upon the motion of plaintiff Larry Stewart, an inmate at St. Francois County Jail, for leave to commence this action without payment of the required filing fee [Doc. #2]. 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 $1.00. See 28 U.S.C. § 1915(b)(l). Additionally, the Court will order plaintiff to submit an amended complaint.
28 U.S.C. § 1915(b)(l)
Pursuant to 28 U.S.C. § 1915(b)(l), 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 reported that the Jail will not provide him with a certified copy of his account statement. Therefore, the Court will assess an initial partial filing fee of $1.00 at this time.
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 ifthe 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 ifit "lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 112 S.Ct. 1728, 1733 (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, 127 S.Ct. 1955, 1974 (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 under 42 U.S.C. § 1983 alleging violations of his civil rights. Named as defendants are: St. Francois County Jail; St. Francois County; Officer Gary Branham; Officer Michael Jones and Officer Elizabeth Deere. The complaint seeks monetary and injunctive relief.
Plaintiff asserts that he was assaulted by "Terre Dulac Police" on May 16, 2012, "in an attempt to [get a] confession on [his] current charges." He claims that from May 17, 2012, until June 2, 2012, he was left in a padded cell with nothing to keep him warm and was not allowed psychiatric assistance after a suicide attempt. He asserts that during this time period he was not given meals on 26 occasions, or access to water. Unfortunately, plaintiff fails to allege exactly which defendants refused to feed him or provide him access to psychiatric care. Plaintiff does state, however, that he asked Officer Jones for medical attention on one occasion and it was refused. Plaintiff has not stated the alleged date of this occurrence or any additional information about his need for medical assistance.
Plaintiff claims that between July 9, 2012, and July 26, 2012, his property was removed from his cell, including his bed, and he was made to sleep on a concrete floor. Plaintiff again does not name the individual defendant purportedly involved with these actions or identify the precipitating events surrounding these actions.
Plaintiff asserts, in a conclusory manner, that on November 21, 2012, he was assaulted by Officer Deere, "in an attempt to get a confession." He states that his legal mail was confiscated, but he does not claim whether this was also done by defendant Deere. Plaintiff also does not identify the civil rights he beli.eves were allegedly violated when these actions occurred.
Plaintiff states that on April 7, 2013, he was taken to the "hole" for fighting by Officer Deere, and kept in the "hole" until July 30, 2013. Plaintiff does not provide the Court with any information relative to his environment in the "hole, " and he fails to provide information as to ...