United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of plaintiff Jose
Alfredo Velasquez (registration no. 41851-079), an inmate at
Saint Genevieve Detention 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 $33.13. 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).
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
plaintiffs account indicates that plaintiff has insufficient
funds to pay the entire filing fee. Accordingly, the Court
will assess an initial partial filing fee of $33.13, which is
20 percent of plaintiffs average monthly deposit of $165.66.
U.S.C. § 1915(e)
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'd 826 F.2d
1059 (4th Cir. 1987).
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 plaintiffs
proffered conclusion is the most plausible or whether it is
more likely that no misconduct occurred. Id. at
brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights. Plaintiff names three
defendants in this action: Andrew Johnson (Jail
Administrator); Unknown Ms. Carro (Jail Supervisor) and
Unknown Gubel (Correctional Officer). Plaintiff sues all
defendants in their individual and official capacities.
to the complaint, the toilet in cell number 3 began leaking
on June 22, 2017, and water from the leak flowed onto a
walkway area. On July 4, 2017, plaintiff slipped and fell
while walking back to his cell. Plaintiff states that he told
Officer Gubel and Supervisor Carro about the situation, but
the leak was not fixed until mid-July 2017.
alleges that since the fall, he has suffered back pain and
neck pain, in addition to pain in his pelvis. Plaintiff
states he has also suffered from headaches and anxiety and
stress. Plaintiff acknowledges that he underwent an x-ray
after the fall and he was seen by a doctor. The x-ray results
are attached to plaintiffs complaint.
further alleges that he filed grievances about the slippery
conditions to the jail staff but they failed to fix the issue
in a timely manner. He attaches copies of his grievance
forms, as well as an affidavit he created and two affidavits
from fellow inmates, to his complaint.
grievance responses from the jail are also attached to his
complaint. The unnamed jail official first wrote that
plaintiff had been treated for back, neck and shoulder pain
prior to the alleged incident on July 4, 2017 by medical and
nurse personnel. The response indicated that if plaintiff
could give an approximate time that he purportedly fell on
July 4, the Jail Administrator could review the camera system
in order to provide additional ...