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Garrett v. St. Louis County Justice Center

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

March 7, 2017

DWAYNE GARRETT, Plaintiff,
v.
ST. LOUIS COUNTY JUSTICE CENTER, Defendant.

          MEMORANDUM AND ORDER

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon the motion of plaintiff, Dwayne Garrett, an inmate at St. Louis County Justice Center, for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court will assess an initial partial filing fee of $1.00 at this time. Furthermore, based upon a review of the complaint, the Court finds that the Court will appoint counsel, and counsel will be required to file an amended complaint in this matter.

         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.

         Although plaintiff has submitted an affidavit of indigence, he has not submitted a true certified account statement. Instead plaintiff has submitted what appears to be a receipt from the commissary, showing an account balance of $18.83. As a result, the Court will require plaintiff to pay an initial partial filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the Court with a certified copy of his prison account statement, the Court should assess an amount “that is reasonable, based on whatever information the court has about the prisoner's finances.”). If plaintiff is unable to pay the initial partial filing fee, he must submit a copy of his prison account statement in support of his claim.

         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=d 826 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 brings this action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, claiming violations of his civil rights. Plaintiff has named the St. Louis County Justice Center, a non-suable entity, as a defendant in this action. See Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (departments or subdivisions of local government are “not juridical entities suable as such.”). Plaintiff has also named as defendants: Reverend Stanley; Officer Unknown Morton; Case Manager Unknown Childress; Herbert Bernsen (Director, St. Louis County Justice Center); Lieutenant Unknown Howard; Officer Unknown Dixon; Nurse Jamie Unknown; Unit Manager Unknown Hopkins; Officer Unknown Corcoran; Lieutenant Unknown Overton; and Jane and John Doe Medical Staff at the St. Louis County Justice Center. Plaintiff brings this action against the defendants in both their individual and official capacities.[1]

         Plaintiff alleges that when he was taken to the St. Louis County Justice Center in October 2016, he informed the intake officers that he was a homosexual, that he was receiving female hormone treatments, and that he had “well developed breasts.” Plaintiff asked for “ADA” accommodations, [2] specifically for protection from rape and sexual harassment and assault. Despite his objections, however, he was housed with male inmates. As a result, he was subjected to a violent sexual assault for which he needed medical treatment. He alleges that unnamed doctors knew of his injuries but refused to provide him the immediate medical attention he needed. Instead, he was allowed to bleed constantly from his rectum for weeks. Plaintiff claims that the delay in treatment has resulted in a need for reconstructive surgery.

         Plaintiff further alleges that Officer Dixon refused to allow him to call the hotline for reporting sexual abuse in order to report the assault.[3] He alleges that Officer Childress refused to allow him to wear a bra to hide his breasts in an effort to prevent another assault. He alleges that Officer Morton allowed other male inmates to touch and grope him.

         Plaintiff also alleges that he is of the Wiccan faith, and his requests for a Wiccan Bible and other materials was denied. According to plaintiff, Reverend Stanley told him, “We don't carry that type of material. You people are weird.” He alleges that Lt. Howard told him that “we don't buy religious materials for inmates” and that he would not provide any Wiccan materials or access to “them people” or allow “devil worshipping” in the jail. Plaintiff alleges that he filed a grievance claiming that the Justice Center failed to follow the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc, et seq.[4]

         In his request for relief, plaintiff seeks to have an area in the Justice Center set aside for LGBT persons, as well as cameras placed in all other areas for safety reasons. Plaintiff ...


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