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Velasquez v. Johnson

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

October 26, 2017

JOSE ALFREDO VELASQUEZ, Plaintiff,
v.
ANDREW JOHNSON, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE.

         This 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).

         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 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.

         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'd 826 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 plaintiffs proffered conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.

         The Complaint

         Plaintiff 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.

         According 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiffs 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 ...


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