United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of plaintiff Larry
Terrell Howard for leave to commence this civil action
without prepayment of the required filing fee. Having
reviewed the motion and the financial information submitted
in support, the Court has determined that plaintiff is unable
to pay the entire filing fee, and will assess an initial
partial filing fee of $3.72. See 28 U.S.C. §
1915(b)(1). In addition, for the reasons discussed below, the
Court will dismiss the complaint, without prejudice.
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 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 $10.00, until the
filing fee is fully paid. Id.
support of the instant motion, plaintiff submitted an inmate
account statement showing an average balance of $18.61. The
Court will therefore assess an initial partial filing fee of
$3.72, which is twenty percent of plaintiffs average balance.
Standard on Initial Review
28 U.S.C. § 1915(e)(2), the Court is required to dismiss
a complaint filed in forma pauperis if it is frivolous,
malicious, or fails to state a claim upon which relief can be
granted. To state a claim for relief under § 1983, a
complaint must plead more than "legal conclusions"
and "[t]hreadbare recitals 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, inter alia, draw
upon judicial experience and common sense. Id. at
reviewing a pro se complaint under § 1915(e)(2), the
Court must give it the benefit of a liberal construction.
Haines v. Kerner, 404 U.S. 519, 520 (1972). However,
this does not mean that pro se complaints may be
merely conclusory. Even pro se complaints are required to
allege facts which, if true, state a claim for relief as a
matter of law. Martin v. Aubuchon, 623 F.2d 1282,
1286 (8th Cir. 1980); see also Stone v. Harry, 364
F.3d 912, 914-15 (8th Cir. 2004) (federal courts are not
required to "assume facts that are not alleged, just
because an additional factual allegation would have formed a
stronger complaint"). In addition, affording a pro se
complaint the benefit of a liberal construction does not mean
that procedural rules in ordinary civil litigation must be
interpreted so as to excuse mistakes by those who proceed
without counsel. See McNeil v. U.S., 508 U.S. 106,
brings this action pursuant to 42 U.S.C. § 1983. Named
as defendant is the Missouri Department of Corrections. For
his statement of claim, plaintiff writes: "Officers in
2004, failed to have the duress button on when I pressed it
for help." (Docket No. 1 at 5). Plaintiff claims that,
because of this, he was raped by an offender. He claims that
he went to the medical building the following morning and
reported the incident. He states he believes staff failed to
perform their job duties as scheduled, but does not explain
why he believes this. He seeks monetary damages.
complaint will be dismissed because it was filed after the
expiration of the applicable statute of limitations. Section
1983 claims are analogous to personal injury claims, and are
subject to Missouri's five-year statute of limitations.
See Sulik v. Taney County, Mo., 393 F.3d 765, 766-67
(8th Cir. 2005) (finding § 1983 claims subject to
Missouri's five-year statute of limitations for personal
injury claims); see also Mo. Rev. Stat. §
516.120(4). "Although the statute of limitations is an
affirmative defense, a district court may properly dismiss an
in forma pauperis complaint under 28 U.S.C. § 1915
when it is apparent the statute of limitations has run."
Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992)
claims that the incidents giving rise to the complaint
occurred in 2004. He filed the complaint on October 13, 2017.
The Court will therefore dismiss the complaint based upon the
expiration of the statute of limitations. See Myers,
960 F.2d at 751; 28 U.S.C. § 1915(e)(2)(B).
addition, plaintiffs claims against the Missouri Department
of Corrections, the sole named defendant, are barred by the
Eleventh Amendment. Pennhurst State School & Hosp. v.
Halderman,465 U.S. 89, 100 (1984); Nix v.
Norman,879 F.2d 429, 432-33 (8th ...