United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of plaintiff Aaron
Lamont Welch, an inmate at Eastern Reception, Diagnostic and
Correctional Center, for leave to commence this action
without prepayment of the filing fee. The motion will be
granted, and the Clerk will be directed to issue process upon
the complaint as to each defendant in his individual
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 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
his 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 $10.00, until the filing fee
is fully paid. Id.
submitted his motion on a Court-provided form but omitted the
second page, which solicits information about his finances.
However, along with the motion, plaintiff submitted a
Pemiscot County Jail inmate account statement that details
his inmate account for the periods he was incarcerated there.
The Court will therefore view the omission of the second page
as an inadvertent error. Based upon the information before
the Court, plaintiffs average monthly deposit is $8.79, and
his average monthly balance is $5.61. The Court finds
plaintiff has insufficient funds to prepay the filing fee,
and will assess an initial partial filing fee of $1.75,
twenty percent of plaintiff s average monthly deposit.
Standard on Initial Review
28 U.S.C. § 1915(e)(2), the Court is required to dismiss
a complaint filed in forma pauperis if it is
frivolous, malicious, or fails to state a claim upon which
relief can be granted. To state a claim for relief under
§ 1983, a complaint must plead more than "legal
conclusions" and "[t]hreadbare recitals of the
elements of a cause of action [that are] supported by mere
conclusory statements." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A plaintiff must demonstrate a
plausible claim for relief, which is more than a "mere
possibility of misconduct." Id. at 679. "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. at 678. Determining whether a
complaint states a plausible claim for relief is a
context-specific task that requires the reviewing court to,
inter alia, draw upon judicial experience and common
sense. Id. at 679.
Court is required to liberally construe a pro se
complaint. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, this does not mean that pro se
complaints may be merely conclusory. Even pro se
complaints are required to allege facts which, if true, state
a claim for relief as a matter of law. Martin v.
Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980); see
also Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir.
2004) (federal courts are not required to "assume facts
that are not alleged, just because an additional factual
allegation would have formed a stronger complaint").
Giving a pro se complaint the benefit of a liberal
construction does not mean that procedural rules in ordinary
civil litigation must be interpreted so as to excuse mistakes
by those who proceed without counsel. See McNeil v.
U.S., 508 U.S. 106, 113 (1993).
brings this action pursuant to 42 U.S.C. § 1983. Named
as defendants are Michael Coleman and Dustin Fitzwater, both
of whom are sued in their individual capacities. The events
described in the complaint occurred on April 4, 2017 when
plaintiff was an inmate at the Pemiscot County Jail,
apparently awaiting adjudication on a charge of probation
violation. See State v. Aaron Welch,
15PE-CR00870-01 (34th Jud. Cir. Apr. 21, 2017). Plaintiff
alleges that he was transported to the dentist to undergo a
tooth extraction. The prison official who transported
plaintiff was one Chad Nixon, against whom plaintiff filed a
lawsuit in this Court earlier this year. The dentist wrote
plaintiff a prescription for Tylenol 3, and gave it to Nixon.
After plaintiff was returned to the jail, he slept in the
medical department but later awoke in pain. He pressed a
button to access the PA system, and asked Coleman for his
prescription medication. Coleman refused, stating the nurse
could give him Ibuprofen the following day. Plaintiff
protested but Coleman still refused. Plaintiff berated
Coleman and accused him of retaliating against him over the
Nixon lawsuit. Coleman then stated he was going to "walk
[his] meds down to medical." (Docket No. 1 at 6). Upon
Coleman's arrival, plaintiff was lying down. Coleman told
him to sit up, and he complied. Coleman then grabbed
plaintiff, threw him into a glass window, and banged his head
on the glass several times. Coleman then lifted plaintiff off
the ground by his pants, causing pain. Fitzwater twisted
plaintiffs arm in different directions trying to break it,
causing pain. Plaintiff was then carried by his pants to the
booking area, stripped naked, and placed on suicide watch.
Plaintiff claims that Coleman and Fitzwater took these
actions against him in retaliation for the Nixon lawsuit. He
seeks monetary relief and medical care for his injuries.
complaint survives initial review as to plaintiffs First
Amendment retaliation claims. He alleges he was denied
prescribed pain medication, attacked and beaten, stripped
naked, and placed on suicide watch in retaliation for the
Nixon lawsuit. To state a First Amendment retaliation claim,
a plaintiff must allege that he engaged in a protected
activity, an official took adverse action that would chill a
person of ordinary firmness from continuing that activity,
and the official's adverse action was motivated in part
by plaintiffs exercise of protected activity. Santiago v.
Blair, 707 F.3d 984, 991-92 (8th Cir. 2013). The
complaint also survives initial review as to plaintiffs Due
Process claims for use of excessive force. Plaintiff alleges
that defendants purposely used force against him even though
he was peacefully lying down. The "Due Process Clause
protects a pretrial detainee from the use of excessive force
that amounts to punishment." Kingsley v.
Hendrickson, 135 S.Ct. 2466, 2473 (quoting Graham v.
Connor, 490 U.S. 386, 395 (1989)). The Clerk will be
directed to issue process upon the complaint as to both
defendants in their individual capacities.
IT IS HEREBY ORDERED that plaintiffs motion
to proceed in forma pauperis (Docket No. 2) is
IS FURTHER ORDERED that plaintiff must pay an
initial filing fee of $1.75 within twenty-one (21) days of
the date of this Order. Plaintiff is instructed to make his
remittance payable to "Clerk, United States District
Court, " and to include upon it: (1) his name; (2) his
prison registration number; (3) the case number; and (4) the
statement that the remittance is for an original proceeding.
IS FURTHER ORDERED that the Clerk of Court shall
issue process or cause process to issue as to defendants
Michael Coleman and ...