United States District Court, E.D. Missouri, Eastern Division
DAMONTE A. DIXON, Plaintiff,
CORIZON, et al., Defendants.
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of plaintiff
(registration no.163320), an inmate at St. Louis City Justice
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 $15.16. 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
plaintiff's account indicates an average monthly deposit
of $75.83. Plaintiff has insufficient funds to pay the entire
filing fee. Accordingly, the Court will assess an initial
partial filing fee of $15.16, which is 20 percent of
plaintiff's 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).
brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights. Named as defendants are
Corizon Medical; Dr. Unknown Fuentes, a Corizon Doctor; and
Unknown State Actors. Defendants are named in their official
and individual capacities.
asserts that he has had an infection in his toe since
December of 2016 that has caused him serious pain and
affected his walking. Plaintiff claims that he has not
received proper treatment during his incarceration from Dr.
Unknown Fuentes, who is employed by Corizon Medical at the
Justice Center, and plaintiff fears that he is in imminent
danger of severe injury. Plaintiff states that he has also
been denied hospital treatment by Dr. Fuentes. He seeks
monetary damages and injunctive relief.
has alleged enough facts to submit a claim against Dr.
Fuentes, in his individual capacity, for deliberate
indifference to his serious medical needs in violation of the
Eighth Amendment with relation to his ongoing infection in
his toe. The Court will issue process on this deliberate
indifference claim against Dr. Fuentes in his individual
allegations against Dr. Fuentes in his official capacity, and
against Corizon, however, are subject to dismissal. To state
a claim against an official in his or her official capacity,
plaintiff must allege that a policy or custom of his or her
employer is responsible for the alleged constitutional
violation. Monell v. Dep't of Social Services,
436 U.S. 658, 690-91 (1978). The instant complaint does not
contain any allegations that a policy or custom of Corizon
was responsible for the alleged violations of plaintiff's
constitutional rights. As a result, the complaint fails to
state a claim upon which relief can be granted.
plaintiff has not made any allegations against the
“Unknown State Actors” in his complaint such that
these actors can be identified with specificity or enough to
show that they were directly responsible for an alleged
violation of plaintiff's purported deprivation of rights.
See Madewell v. Roberts, 909 F.2d 1203, 1208 (8th
Cir. 1990) (“Liability under § 1983 requires a
causal link to, and direct responsibility for, the alleged
deprivation of rights.");see also Martin v.
Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not
cognizable under § 1983 where plaintiff fails to allege
defendant was personally involved in or directly responsible
for incidents that injured plaintiff); Boyd v. Knox,47 F.3d 966, 968 (8th Cir. ...