United States District Court, E.D. Missouri, Southeastern Division
MICHAEL L. ARNOLD, Plaintiff,
CORIZON, INC., et al., Defendants.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This matter is before the Court upon the motion of plaintiff (registration no.68237), 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 plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $2.03. 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 $10.17, and an average monthly balance of $0. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $2.03, 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 Southeastern Correctional Center ("SECC"), seeks monetary relief in this 42 U.S.C. § 1983 action against: George Lombardi (Director, MDOC); Ian Wallace (Warden); Corizon, Inc.; Paul Jones (Doctor); Michael Hakala (Doctor); Dana Nix Degen (Nurse); Larry Roussin (Nurse); and "Pat Does 1-3".
Plaintiff's allegations arise out of medical problems that occurred from January through May of 2013 at SECC. Plaintiff states that during this time period he suffered greatly through complications from kidney stones and kidney infections that were ignored, delayed in treatment, and in some circumstances deliberately untreated, in violation of plaintiff's serious medical needs under the Eighth Amendment. Plaintiff also alleges he was subjected to cruel and unusual punishment by the individual defendants Paul Jones, Michael Hakala Dana Nix Degen, and Larry Roussin. These defendants were employed by Corizon, Inc. He brings his lawsuit against them in their individual capacities.
Plaintiff is suing defendant Corizon, Inc. in its official and individual capacity. Plaintiff is suing defendants Wallace and Lombardi in their official capacities, asserting generally that they are part of a "policy, practice or custom of deliberate indifference to the serious medical needs of inmates of denying or delaying medical treatment and failing to administer vital medications."
This is the second time plaintiff has brought these allegations against defendants. See Arnold v. Corizon, Inc., Case No. 1:13CV121 SNLJ (E.D.Mo. 2014). In that case, plaintiff's complaint was dismissed for failure to exhaust his administrative remedies on November 26, 2014. Id. In the body of the instant complaint, plaintiff states that he has since exhausted his administrative remedies against the defendants named in the present complaint, and that the matter is ready to be brought before this Court. Because failure to exhaust in a timely manner is an affirmative defense that can only be argued by defendants, see Jones v. Bock, 549 U.S. 199 (2007), the Court can only review plaintiff's complaint for other issues at this time. See 28 U.S.C. § 1915.
After reviewing the complaint, the Court believes plaintiff's claims against defendants Paul Jones, Michael Hakala, Dana Nix Degen, and Larry Roussin, in their individual capacities, survive initial review under 28 U.S.C. § 1915 and will order the Clerk to issue process ...