United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN, UNITED STATES MAGISTRATE JUDGE
a pretrial detainee at the St. Louis City Justice Center,
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. §
In Forma Pauperis Status
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). 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).
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).
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.
of Review under Section 1915(e)(2)
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). 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.
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).
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.
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
skull.” Plaintiff alleges he has “constantly
ha[d] dizzy spells an[d] almost pass[ed]
out.” 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. Finally, he