United States District Court, E.D. Missouri, Southeastern Division
AARON L. WELCH, Plaintiff,
CHAD NIXON, Defendant.
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of plaintiff,
Aaron Lamont Welch, an inmate at Pemiscot County Jail, 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 $1.82. See 28 U.S.C. § 1915(b)(1).
Furthermore, based upon a review of the complaint, the Court
will require plaintiff to amend his complaint within thirty
(30) days of the date of this Memorandum and Order.
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.
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 $6.29, and an average monthly balance of $8.82. Plaintiff
has insufficient funds to pay the entire filing fee.
Accordingly, the Court will assess an initial partial filing
fee of $1.82, which is 20 percent of plaintiff's average
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=d826 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.
who is currently awaiting trial on a probation revocation, is
an inmate at Pemiscot County Jail. He brings the present
lawsuit pursuant to 42 U.S.C. § 1983 asserting that
defendant Chad Nixon, a Jail Administrator in Pemiscot
County, violated his civil rights. Plaintiff names defendant
Nixon in his individual capacity.
asserts that on February 22, 2017, he and his roommate were
talking in their cell and asked Officer Jocci if they could
leave the meal slot open to circulate the air.
Plaintiff's roommate was told to move his arm away from
the meal slot entrance, and he in turn, replied that they
really needed air. When Officer Jocci attempted to close the
meal slot on plaintiff's roommate's hand but the slot
wouldn't close, she radioed defendant Nixon for help who
told plaintiff's roommate to remove his hand or he would
“fog” the cell or tazer him. Plaintiff states
that he then asked to be removed from the cell before any
“fogging” occurred, but Nixon answered no. Nixon
then used the slot to “fog” the cell, or force
pepper spray, into plaintiff and his roommate's cell.
Plaintiff believes defendant's actions violated his
rights when he failed to remove him from the cell prior to
macing his roommate. Plaintiff acknowledges that he and his
roommate were allowed to wash off the mace off of them after
the incident, although he states that he was breathing
heavily when he was allowed to exit the cell. Plaintiff has
not indicated that he was in need of medical care that was
alleges that the conditions of confinement at the Pemiscot
County Jail are in violation of the Constitution. He states
that on March 9, 2017, an unnamed person provided him and his
roommate with cups of ice with bits of metals in the sides of
the cups. He does not allege that he was hurt by the
incident. However, he claims that defendant Nixon was
notified of the event and he told plaintiff and his roommate
not to tell anyone else about the incident.
states that the next day he “passed out” and
busted his head and had to go to the emergency room to have
his head checked out. Plaintiff asserts that he told the
nurses at the ER about the metal in his ice cup. Plaintiff
states that when he returned to the Jail he was stripped and
placed in a room by himself for two days. Plaintiff does not
state who placed him in the room by himself, but he believes
it happened in retaliation for “telling” the
nurses at the ER about the ice cup incident at the prison.
believes defendant Nixon may have influenced the Prosecutor
and/or Judge in his probation revocation case to increase his
possible revocation sentence in that case. Plaintiff asserts
that defendant Nixon started laughing at him during his last
court proceeding and told him after the court proceeding that
“you'll never win in our battlefield.”
Plaintiff states that at his hearing he was told by the Judge
that his possible revocation sentence could be up to 10 years
at 80% for something he had previously believed to be a minor
or technical violation. Therefore, plaintiff believes
defendant Nixon must have done or said something to increase
his revocation ...