United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of Lamon Taneal
Hemingway (registration no. 1101853), an inmate at Southeast
Correctional Center, for leave to commence this action
without payment of the required filing fee. For the reasons
stated below, the Court finds that the plaintiff does not
have sufficient funds to pay the entire filing fee and will
assess an initial partial filing fee of $1.70. See
28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the
complaint, the Court will partially dismiss the complaint and
will order the Clerk to issue process or cause process to be
issued on the non-frivolous portions of the complaint.
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
plaintiffs account indicates an average monthly deposit of
$8.50. Accordingly, the Court will assess an initial partial
filing fee of $1.70, which is 20 percent of plaintiffs
average monthly deposit.
U.S.C. § 1915(e)
to 28 U.S.C. § 1915(e)(2)(B), the Court must 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 from a defendant who is
immune from such relief. An action is frivolous if it
"lacks an arguable basis in either law or fact."
Neitzke v. Williams, 490 U.S. 319, 328 (1989);
Denton v. Hernandez, 504 U.S. 25, 31 (1992). An
action is malicious if it is undertaken for the purpose of
harassing the named defendants 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). 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).
an inmate at SECC, brings this action pursuant to 42 U.S.C.
§ 1983, alleging violations of his civil rights. Named
as defendants are: Nina Hill; Kimberly Delisle; Unknown
Roberts; Michael Loomis; Antonia Johann; and Larry Graham.
Plaintiff claims that each of the alleged defendants are
current nurses at SECC, employed by Corizon. Plaintiff sues
defendants in their individual and official capacities.
claims to suffer from a seizure disorder and to regularly see
nurse Nina Hill in a chronic care clinic at the prison. He
asserts that on February 2, 2017, he was seeing Nurse Nina
Hill on "sick call for other injuries, " and he
began to tell Nurse Hill allegations about his purported
offender abuse claims. Plaintiff purportedly told Nurse Hill
that she had an obligation to report plaintiffs offender
abuse claims, and he stated that if she failed to report the
offender abuse he would have to report Nurse Hill for failing
to do so. Plaintiff asserts that Nurse Hill became upset at
plaintiff and "did not try to complete" plaintiffs
sick call. Allegedly, Nurse Hill told plaintiff not to tell
her how to do her job and that all he did was complain and
asserts that the next day, in the seizure clinic, he was
given a lower dose of his seizure medicine, but when he asked
a nurse why she stated, "I don't
care." When he asked Nurse Antonia Johann about the
medication she purportedly told plaintiff that defendant Hill
was lowering the doses of the medication for the next thirty
(30) days and then planning on ending the medication at the
end of thirty (30) days. Plaintiff claims that defendant
Johann could not explain why, except for the fact that she
had seen medical notes indicating that defendant Hill had
documented plaintiff had refused a blood draw so defendant
Hill had been unable to monitor his blood levels for his
seizure medication. Defendant Johann told plaintiff defendant
Hill believed plaintiff was not taking his medication.
Plaintiff states that he told defendant Johann that he was
taking his medication and that it was necessary to treat his
seizure disorder because his seizures would increase without
the medication. He also indicated that he had not refused any
blood draws. Plaintiff has produced records showing that
defendant Nina Hill has provided plaintiff with a medical
lay-in previously for his seizure disorder, and he claims
that she knew that plaintiff needed the larger dose of the
medication in order to control the seizures and to maintain
his health and safety.
claims that just three days later, on February 6, 2017, he
had a seizure while on the toilet, causing him to black out
and wake up in a puddle of urine. Plaintiff believes the
seizure occurred as a result of the decrease in his seizure
medication. He asserts that the decrease in the medication by
Nina Hill was in retaliation for him telling Hill that he may
need to report the medical staff if they failed to report
offender abuse going on at SECC.
seeks monetary damages ...