United States District Court, E.D. Missouri, Eastern Division
TARELL A. ADAMS, Plaintiff,
RYAN HILLIS, et al., Defendants.
MEMORANDUM AND ORDER
RICHARD WEBBER UNITED STATES DISTRICT JUDGE.
matter is before the Court upon pro se plaintiff Tarell A.
Adams's motion for leave to proceed in forma pauperis.
(Docket No. 2). Having reviewed the financial information
plaintiff submitted in support, the Court determines that he
is unable to pay the full amount of the filing fee. The
motion will therefore be granted. In addition, for the
reasons explained below, the Court will dismiss the official
capacity claims and direct the Clerk of Court to issue
process upon all defendants in their individual capacities.
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 $10.00, until the
filing fee is fully paid. Id.
support of the instant motion, plaintiff submitted an
affidavit and a certified inmate account statement showing an
average monthly deposit of $8.72, and an average monthly
balance of $11.10. The Court will therefore assess an initial
partial filing fee of $2.22, twenty percent of
plaintiff's average monthly balance.
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. A pleading that offers “labels
and conclusions” or “a formulaic recitation of
the elements of a cause of action will not do, ” nor
will a complaint suffice if it tenders “naked
assertion[s]” devoid of “further factual
enhancement.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
conducting initial review pursuant to § 1915(e)(2), the
Court must accept as true the allegations in the complaint,
and must give the complaint the benefit of a liberal
construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, the tenet that a court must accept the
allegations as true does not apply to legal conclusions,
Iqbal, 556 U.S. at 678, and affording 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). 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”).
brings this action pursuant to 42 U.S.C. § 1983. Named
as defendants are correctional officers Ryan Hillis, Brandon
A. Elkins, and Cassie L. Kobert. Plaintiff sues all
defendants in their official and individual capacities.
to the complaint, on August 1, 2016, plaintiff was
incarcerated at Farmington Correctional Center in housing
unit 5. At about 12:50 p.m. he was cuffed to a bench in
B-wing. Brandon Elkins told Ryan Hillis to not remove
plaintiff from the bench. When Hillis asked why not, Elkins
said “I'll tell you later.” (Docket No. 1 at
5). Hillis asked Elkins what was going on, and Elkins said
“since he thinks he so bad I want to see and show the
wing his buttocks.” (Id.) Hillis then came to
place plaintiff in a strip cage, and plaintiff protested
submitting to a strip search.
and Elkins “then took turns using excessive force to
make [plaintiff] perform sexual acts.” (Id.)
Plaintiff then submitted to a strip search, after which
Hillis forced plaintiff to spread his buttocks three times.
Cassie Kobert witnessed the events and did nothing.
individual capacity claims against Ryan Hillis and Brandon
Elkins for violation of his rights under the Eighth and
Fourth Amendments will be allowed to proceed. Plaintiff's
individual capacity claim against Cassie Kobert for failing
to intervene, to the extent plaintiff alleges she did not
intervene when excessive force was being used against him,
will also be allowed to proceed. See Hess v. Ables,