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Owen v. Lisenbe

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

October 17, 2017




         This matter is before the Court upon the motion of plaintiff Ronnie Lee Owen, an inmate at Phelps County Jail, to reconsider the Court's Memorandum and Order dated August 21, 2017. Specifically, plaintiff seeks leave to file this action without payment of the $1.00 initial filing fee previously ordered by the Court. Having reviewed plaintiff's financial information, including his certified inmate account statement, the Court will vacate the portion of its prior Memorandum and Order that ordered plaintiff to pay the $1.00 initial filing fee. See 28 U.S.C. § 1915(b)(4). Furthermore, after reviewing the complaint, the Court will order the Clerk to issue process or cause process to be issued on the complaint.[1]

         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 negative monthly balance, and no deposits. For this reason, the Court will waive the initial partial filing fee at this time. See 28 U.S.C. § 1915(b)(4) (“In no event shall a prisoner be prohibited from bringing a civil action . . . for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.”). However, plaintiff is not excused from paying the filing fee. The agency having custody of plaintiff will be directed to begin forwarding payments from plaintiff's inmate account, pursuant to 28 U.S.C. § 1915(b)(2), until the $400 filing fee is paid in full.

         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 fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).

         In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

         The Complaint

         On September 27, 2017, plaintiff filed an amended complaint under 42 U.S.C. § 1983 against Richard Lisenbe, Sheriff of Phelps County, Missouri; and Matt Shults, Lieutenant and Jail Administrator of the Phelps County Jail, in their official and individual capacities. Plaintiff complains of overcrowding at the jail, stating that the capacity of the jail is 118 to 124 inmates, but the jail is holding 180 to 270 inmates, with an average inmate population of 220. Plaintiff is housed in the E-Pod, which was designed to house 16 inmates-for example, there are 16 bunks, 16 stools at 4 tables for dining, 16 hangers for wet towels, 2 toilets, and 2 showers. Plaintiff alleges the average number of inmates in the E-Pod is 36, but at times can rise to 55 inmates.

         Plaintiff alleges that because of the overcrowding, the jail is unsanitary, does not allow recreation time, fresh air or daylight, food service is compromised, and plaintiff has been forced to sleep on concrete. On one occasion, while he was suffering severe stomach pains and severe diarrhea, plaintiff was forced to wait more than two hours for a toilet. Eventually, he soiled himself. He states that subsequently, “I was forced to sit in my own filth for 1 hours waiting on an open shower to wash myself, which caused a rash, itching, pain, and discomfort.” Plaintiff also alleges that because of overcrowding, he often has to stand and eat his meals off a large tray, or balance the tray on his knees while seated on a top bunk. He states that on more than 70 occasions over the past year, he has spilled or dropped his tray, and has had to go without food. The jail cannot replace the spilled food because of the sheer number of spilled trays per meal. Plaintiff alleges the stress and frustration caused by the overcrowding has caused two fights in which he was injured by other inmates.

         In addition, overcrowding has caused the jail administrators to repurpose the gym into additional housing units. The outside recreational area has also been repurposed for dog training. Plaintiff alleges he has had no recreational time, has not been outside, or had sunlight or fresh air in more than a year. He states the overcrowding has caused him illness, migraines, stomach problems, shortness of breath, chest pains, and joint pain.

         Plaintiff has complained to defendants about the conditions, and states he was threatened by defendant Shults that if he continued to complain he would serve his time in the “pink room” (i.e., a punishment cell with no mattress, bunk, or toilet) and that ‚Äúthere are worse things that could befall me if I didn't cease my ...

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