United States District Court, E.D. Missouri, Southeastern Division
CASEY W. SOBBERI, Plaintiff,
IAN WALLACE, et al., Defendants.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of plaintiff Casey
Sobberi (registration no.1096210), 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
$45.61. See 28 U.S.C. § 1915(b)(1).
Furthermore, based upon a review of 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.
U.S.C. § 1915(b)(1)
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.
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 $90.90, and an average monthly balance of $228.09.
Plaintiff has insufficient funds to pay the entire filing
fee. Accordingly, the Court will assess an initial partial
filing fee of $45.61, which is 20 percent of plaintiff's
average monthly balance.
U.S.C. § 1915(e)
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 when it is undertaken for the purpose of
harassing litigants 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'd826 F.2d 1059
(4th Cir. 1987).
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.
an inmate at SECC, brings this action for monetary and
injunctive relief pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights. Named as defendants are: Ian
Wallace (Warden, SECC); Paula Reed (Assistant Warden, SECC)
and; Matthew Howard (Correctional Officer, SECC). Defendants
are being sued in their official and individual capacities.
alleges that on May 22, 2015, his cellmate alerted defendant
Howard that he wanted to be removed from his cell or else he
would beat up plaintiff. Plaintiff states that defendant
Howard, with full knowledge of the cellmate's past
history of violence towards others, told the cellmate to go
ahead and beat up plaintiff and then walked away. Plaintiff
asserts that his cellmate then hit him, whereupon he fell
forward and hit his back forcefully against the cell doors.
Plaintiff alleges that defendant Howard acted with deliberate
indifference toward plaintiff's safety by failing to
protect him in violation of the Eighth
then makes the conclusory allegation that defendant Wallace
and defendant Reed have “instituted a policy that
inmates can't declare protective custody out of a cell
unless a threat has been made or an assault/injury would
occur if someone is left in their cell.” Plaintiff
claims that an inmate is forced to fight or threaten to fight
your cellmate in order to be removed from one's cell.
Plaintiff believes that this policy is in violation of his
8th Amendment rights.
requests monetary damages in his complaint.
of the Allegations ...