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Kinder v. Minor

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

October 25, 2017




         This matter is before the Court upon the motion of plaintiff Adrian Douglas Lee Kinder (registration no. 1115343), an inmate at Moberly Correctional Center, for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $55.75. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that the complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), but will allow plaintiff to file an amended complaint.

         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 monthly deposit of $278.74, and an average monthly balance of $0. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $55.75, which is 20 percent of plaintiff's average monthly deposit.

         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 is malicious when it is undertaken for the purpose of harassing litigants 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=d826 F.2d 1059 (4th Cir. 1987).

         To determine whether an action fails to state a claim upon which relief can be granted, the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950-51 (2009). These include “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements.” Id. at 1949. Second, the Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51. This is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 1950. The plaintiff is required to plead facts that show more than the “mere possibility of misconduct.” Id. The Court must review the factual allegations in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. When faced with alternative explanations for the alleged misconduct, the Court may exercise its judgment in determining whether plaintiff's proffered conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.

         The Complaint

         Plaintiff, an inmate at Moberly Correctional Center, brings his complaint under the Civil Rights Act, 42 U.S.C. § 1983 against defendants Dean Minor, Warden of Moberly Correctional Center; Moberly Correctional Center; and Missouri Department of Corrections. He alleges he is severely allergic to eggs, and has repeatedly asked Food Service to have his food trays served with no eggs and no egg contamination. While at Moberly Correctional Center, plaintiff alleges he was served trays contaminated with eggs on May 2, 2015, May 21, 2015, January 7, 2017, April 3, 2017, and May 16, 2017. Plaintiff states that on each of these dates he went into anaphylactic shock, and his tongue and throat swelled to the point that he had difficulty breathing. Each time, a medical emergency was declared and plaintiff was transported to medical services to receive Epinephrine, Benadryl, or Solumedrol. These medications are commonly used for severe or incapacitating allergic reactions.

         Plaintiff states that he has continually asked Food Service to remedy the problem, and although they have promised to “be more careful, ” this has not happened. Plaintiff states that when he asks for a tray with no eggs, the tray is made on the same serving line as all the trays, and “[t]here is no system to ensure that the other food on the line or the trays that the food is served on is not contaminated by the other foods that are being served on the line.” Compl. at 6. Plaintiff does not name any Food Service employees as defendants in his complaint, although he refers to an unnamed Food Service Manager.


         Plaintiff brings this action against defendant Dean Minor in his capacity as Warden of Moberly Correctional Center. In its entirety, the allegation against Warden Minor is that “Dean Minor is in charge of all of the staff here at this institution and all things that happen here are his responsibility.” Compl. at 5. Plaintiff does not allege that Warden Minor is personally responsible for any of plaintiff's complaints, which concern only Food Service and the preparation of his meals. Nor does he allege that Warden Minor was causally linked to, or that he bore any personal responsibility for, the denial of plaintiff's requests to have food trays without eggs or egg contamination.

         Plaintiff's allegations against Warden Minor sound in respondeat superior. “Liability under § 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). To be cognizable under § 1983, a claim must allege that the defendant was personally involved in or directly responsible for the incidents that deprived the plaintiff of his constitutional rights. Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985). Claims sounding in respondeat superior are not cognizable under § 1983. Boyd v. ...

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