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Welch v. Nixon

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

April 10, 2017

AARON L. WELCH, Plaintiff,
v.
CHAD NIXON, Defendant.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE.

         This 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.

         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.

         Plaintiff 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 monthly deposit.

         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=d826 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, 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.

         Plaintiff 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 not provided.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 ...


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