United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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=d 826 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.
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.
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,  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.
further alleges that Officer Dixon refused to allow him to
call the hotline for reporting sexual abuse in order to
report the assault. 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.
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.
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 ...