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Shurn v. Steele

United States District Court, E.D. Missouri

January 19, 2017

DARYL SHURN, Plaintiff,
v.
TROY STEELE, et al., Defendants.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the motion of plaintiff Daryl Shurn, an inmate at the Eastern Reception and Diagnostic Correctional Center, to commence this action without prepayment of the filing fee. (Docket No. 2). For the reasons stated below, the motion will be granted and plaintiff will be assessed an initial partial filing fee of $6.65. In addition, the Court has reviewed the complaint and will dismiss it pursuant to 28 U.S.C. § 1915(e).

         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 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 $10.00, until the filing fee is fully paid. Id.

         Plaintiff has submitted a certified inmate account statement showing an average monthly balance of $33.26 during the six months immediately preceding the filing of the complaint. The Court will therefore assess an initial partial filing fee of $6.65, which is twenty percent of plaintiff's average monthly balance.

         Standard of Review

         Title 28 U.S.C. § 1915(e)(2)(B) provides, with respect to litigants proceeding in forma pauperis, the court “shall dismiss the case at any time” if the court determines that it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i) - (iii). A claim is frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319 (1989). 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).

         To state a claim to relief, a complaint must plead more than “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim, which is more than a “mere possibility of misconduct.” Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether a complaint states a plausible claim is a context-specific task that requires the reviewing court to draw upon its judicial experience and common sense. Id. at 679.

         Pro se pleadings are liberally construed, and are held to a less stringent standard when considering whether to dismiss the case for failure to state a claim. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Horsey v. Asher, 741 F.2d 209, 211 n. 3 (8th Cir. 1984). Even so, a pro se complaint must contain specific facts to support its conclusions. Kaylor v. Fields, 661 F.2d 1177, 1183 (8th Cir. 1981).

         The Complaint

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging violation of his Eighth Amendment rights. Named as defendants are Warden Troy Steele, Nurse Heather Turnbolt, Assistant Director of Nursing Todd Renshaw, Director of Nursing Dorothy Barton, Deputy Warden Joe Hoffmeister, Corrections Officers Sandra Boylan and Cindy Miller, and Corizon.

         Plaintiff has submitted his complaint in several parts. He submitted a complaint form (Docket No. 1), a Table of Contents (Docket No. 1, Attach. 2), a Statement of Facts Part One and a Statement of Facts Part Two (Docket No. 1, Attachs. 3 and 4), and Claims One through Eight (Docket No. 1, Attachs. 5 - 12). Plaintiff begins each of Claims One through Eight by naming a specific defendant, and then setting forth, in a very clear and comprehensive fashion, all of the claims he has against that defendant. In total, the complaint spans 52 pages. Plaintiff also attached copies of grievance paperwork, and other correspondence. (Docket No. 1, Attachs. 15 and 17).

         All of plaintiff's claims stem from a December 15, 2015 incident that occurred while plaintiff was in a handicap-accessible shower stall using a shower bench that was affixed to the wall. Plaintiff alleges that the bench broke free from the wall, causing plaintiff to fall, hit his head, and injure his lower back, tail bone, neck and hips. Plaintiff alleges that he also suffers from multiple chronic health problems.

         The morning after the accident, December 16, 2015, plaintiff went to the medical department and was seen by Turnbolt, a nurse, who sent plaintiff to have x-rays performed. On December 18, 2016, plaintiff returned to the medical department and was seen for complaints of severe pain, and given a work excuse. Plaintiff acknowledges that he was given pain medication, but complains that it “leaves him with no knowledge on how sever [sic] the damages to his body has become.” (Docket No. 1, Attach. 3 at 8). Plaintiff repeatedly states that he should have initially received x-rays of additional parts of his body, should have ...


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