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Harris v. Corizon Health Care

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

November 3, 2017

FORREST EDWARD HARRIS, Plaintiff,
v.
CORIZON HEALTH CARE, Defendant.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a pretrial detainee at the St. Louis City Justice Center, [1] seeks leave to proceed in forma pauperis in this civil action he pursues under 42 U.S.C. Section 1983 [ECF No. 2]. Additionally, this matter is before the Court on review of Plaintiff's pro se complaint under 28 U.S.C. § 1915(e)(2).

         Plaintiff's In Forma Pauperis Status

         The fee required to file a civil action, other than an application for a writ of habeas corpus, in a district court is $350.00. 28 U.S.C. § 1914(a).[2] A plaintiff in a civil action may seek leave to proceed without paying a filing fee, otherwise known as proceeding in forma pauperis. See 28 U.S.C. § 1915. A district court may authorize the commencement of any civil action without the prepayment of fees by “a person who submits an affidavit that[, in addition to other information, ] includes a statement of all assets such [person] possesses [and] that the person is unable to pay such fees.” 28 U.S.C. § 1915(a)(1). In addition to filing the affidavit,

a prisoner seeking to bring a civil action . . . without prepayment of fees . . . [must] submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . ., obtained from the appropriate official of each prison at which the prisoner is or was confined.

28 U.S.C. § 1915(a)(2). The statute defines a “prisoner” as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release or [a] diversionary program.” 28 U.S.C. § 1915(h).

         Importantly, when a prisoner pursues a civil action in forma pauperis, the statute requires that “the prisoner . . . pay the full amount of [the] filing fee.” 28 U.S.C. § 1915(b)(1). A prisoner's payment of the full filing fee occurs through the court's assessment and collection of an “initial partial filing fee” followed by required “monthly payments.” 28 U.S.C. § 1915(b). The initial partial filing fee is “20 percent of the greater of - (A) the average monthly deposits to the prisoner's account; or (B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(b)(1). After the initial partial filing fee is paid, the prisoner is “required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account, ” with the “agency having custody of the prisoner . . . forward[ing] payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10.00 until the filing fee[ is] paid.” 28 U.S.C. § 1915(b)(2).

         Having reviewed Plaintiff's available financial information, the Court grants Plaintiff's motion to proceed in forma pauperis and assesses an initial partial filing fee of $22.00, which is twenty percent of the average monthly deposits Plaintiff reported in his affidavit [ECF No. 2]. See 28 U.S.C. § 1915(b)(1)(A); see also Henderson v. Norris, 129 F.3d 481, 484, 485 (8th Cir. 1997) (per curiam) (addressing and setting forth the procedure for the district court's in forma pauperis fee calculations and assessments for an appeal of a civil action, and noting the district court may calculate the initial partial filing fee, in the absence of a certified copy of the prison account, as “$35 or such other amount that is reasonable based on whatever information the court has about the prisoner's finances” or “as $35 or such other reasonable amount warranted by available information”). Having granted Plaintiff in forma pauperis status to pursue this lawsuit, the Court must consider whether the complaint should nevertheless be dismissed. See 28 U.S.C. § 1915(e)(2); see also 28 U.S.C. § 1915A.

         Standard of Review under Section 1915(e)(2)

         Under 28 U.S.C. Section 1915(e), the Court must dismiss a complaint filed in forma pauperis if it is frivolous, is malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).[3] A complaint is “frivolous” when “it lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989) (addressing what constitutes a frivolous complaint for the predecessor to Section 1915(e)(2), 28 U.S.C. § 1915(d)). Notably, the requirement for a Section 1915(e)(2) dismissal based on frivolousness is not the same as a dismissal for failure to state a claim upon which relief can be granted. Id. at 331.

         When reviewing a complaint under 28 U.S.C. Section 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted, the Court accepts the well-pled facts as true and liberally construes the allegations. See Geitz v. Overall, 62 Fed.Appx. 744, 746 (8th Cir. 2003) (unpublished per curiam opinion) (viewing the complaint in a light most favorable to the plaintiff). Although the court must construe liberally a pro se complaint, the allegations must provide “sufficient facts to support the claims advanced.” Stone v. Harry, 364 F.3d 912, 914 (8thCir. 2004). In giving a pro se complaint a “liberal construction, ” the United States Court of Appeals for the Eighth Circuit instructed, a “district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework, ” when “the essence of an allegation is discernible, even though it is not pleaded with legal nicety.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (internal quotation marks and citation omitted).

         More specifically, a complaint must plead more than “legal conclusions” and “[t]hreadbare recital of the elements of a cause of action [that are] supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. “Determining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

         The Complaint

         Plaintiff brings this Section 1983 action alleging he has sought but not received medical attention for cancer, growths in his chest and neck, swollen legs, pain and dizziness. In particular, he states in his complaint that “8 months ago [he] found out [he was] out of remis[s]ion from stage four cancer [and now has] a gro[w]th in [his] chest and a big[g]er growth [at] the base of [his] neck and s[]kull.”[4] Plaintiff alleges he has “constantly ha[d] dizzy spells an[d] al[]most pass[ed] out.”[5] Plaintiff states he has continuously asked Dr. Fuentez for “stronger [pain] medication, ” and, after some delay, she prescribed Naproxen and two other medications before prescribing Tylenol 4.[6] Finally, he ...


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