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Sobberi v. Wallace

United States District Court, E.D. Missouri, Southeastern Division

September 12, 2016

CASEY W. SOBBERI, Plaintiff,
v.
IAN WALLACE, et al., Defendants.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         This 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[1] 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 $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.

         28 U.S.C. § 1915(e)

         Pursuant 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).

         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.

         The Complaint

         Plaintiff, 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.

         Plaintiff 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 Amendment.[2]

         Plaintiff 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.

         Plaintiff requests monetary damages in his complaint.

         Discussion of the Allegations ...


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