United States District Court, E.D. Missouri
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
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).
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 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.
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
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).
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.
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).
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
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).
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.
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 ...