United States District Court, E.D. Missouri, Eastern Division
KEVIN L. HARRISON Plaintiff,
JENNIFER SACHSE, et al., Defendants.
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
This matter is before the Court upon the motion of plaintiff (registration no.1000572), an inmate at Missouri Eastern Correctional Center ("MECC"), 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 $1.73. 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 sixmonth 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 $8.66, and an average monthly balance of $1.58. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $1.73, 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, an inmate at MECC, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Named as defendants are: Jennifer Sachse (Warden); Unknown Hawthorn (Correctional Officer); Unknown Gall (Correctional Officer); and Unknown Williams (Doctor, Corizon, Inc.).
Plaintiff asserts that he was working in the food service area at MECC on December 17, 2014, when he got into a verbal altercation with defendant Gall. Plaintiff claims that defendant Gall sprayed him in the face and nostrils with pepper spray and defendant Hawthorn roughly cuffed his arms behind his back and bent them in such a way to cause pain. Plaintiff claims that he kept telling the officers that he could not breathe with the pepper spray in his nose and mouth, but the officers failed to respond, continued to verbally threaten him and attempted to push him towards "Ad Seg. 5 House."
Plaintiff claims he was attempting to spit pepper spray from his mouth on the way to the Administrative Segregation cell and defendant Hawthorn became enraged that he was spitting and threw him on the ground into the gravel, face-first, pushing his face into the gravel and concrete. Plaintiff claims this caused a severe loss of skin on his face and aggravated a prior gunshot wound that had previously injured his face. Plaintiff asserts that he was then placed in an Administrative Segregation Cell with no running water or towels to wash the pepper spray from his face or nostrils or hands. Plaintiff states that he asked defendants Hawthorn and Gall repeatedly for water and towels to wash his face and hands, as well as for medical care. He was told to use the toilet water to wash with.
Plaintiff asserts that he then asked to see Dr. Williams, and Dr. Williams refused to see him. Thus, plaintiff believes that Dr. Williams was deliberately indifferent to the severe injuries on his face, including the injuries to his nose and mouth from the pepper spray, as well as the reopened wounds on his face and upper torso from being forced onto the gravel by defendant Hawthorne.
Plaintiff claims he filed an "IRR" on the excessive force relating to the two events in a timely fashion but that he was told by the "Administration" that they lost his IRR due to "court outcount." Plaintiff asserts that he then filed his "second step" in his grievance process in order to properly exhaust his administrative remedies.
Plaintiff brings this action against the four defendants both in their individual and official capacities. He seeks a declaration that he attempted fully to exhaust his administrative remedies, ...