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Downs v. Green

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

November 15, 2017

MICHAEL JEROME DOWNS, Plaintiff,
v.
NICOLE GREEN, et al., Defendants.

          MEMORANDUM AND ORDER

          ABBIE CRITES-LEONI, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on the motion of plaintiff Michael Jerome Downs, a prisoner, 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 to grant the motion, and waive the initial partial filing fee. In addition, for the reasons discussed below, the Court will allow plaintiff the opportunity to submit an amended complaint.

         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 $10.00, until the filing fee is fully paid. Id.

         In support of the instant motion, plaintiff submitted a "Detainee Transaction History" form that details his inmate account, and shows that he has a negative account balance. For this reason, the Court will waive the initial partial filing fee. See 28 U.S.C. § 1915(b)(4) ("In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."). However, plaintiff is not excused from paying the filing fee. The agency having custody of plaintiff will be directed to begin forwarding payments from plaintiffs inmate account pursuant to 28 U.S.C. § 1915(b)(2), until the $350 filing fee is paid in full.

         Legal Standard on Initial Review

         Under 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 679.

         When 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, 113 (1993).

         The Complaint

         Plaintiff states that he brings this action pursuant to 42 U.S.C. § 1983. He also states he seeks relief under the Americans with Disabilities Act ("ADA") and under Missouri state law for claims of breach of duty, negligence, and intentional infliction of emotional distress. Finally, he challenges the constitutionality of § 221.070 of the Revised Statutes of Missouri. Jail Administrator Nicole Green, Nurse Ashley Green, Sheriff Bob Holder, Second Jail Administrator Jimmy Smith, Doctor Pewitt, and the Dunklin County Justice Center are named as defendants. Plaintiff states that he sues all of the individual defendants in their individual capacities for damages, and in their official capacities for injunctive relief. He states that his claims against Dunklin County Jail are brought pursuant to Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 690-91 (1978).

         According to the complaint, plaintiff cannot walk without pain, and he uses a wheelchair. He claims that, for the first two weeks of his detention, he was housed in a cell that was not ADA compliant, in that it did not have a sink or toilet. Plaintiff also alleges that he was not allowed to shower. He claims the cell had no sink or toilet, he was allowed to shower once or twice, and he could only use the toilet or get water by asking the officers. He also alleges he is presently housed in a cell that is not ADA-compliant in that it lacks bars that plaintiff can use to help him sit on the toilet. Later in the complaint, plaintiff alleges that Nicole Green, Ashley Green, Jimmy Smith, and Dr. Pewitt have all violated the ADA by failing to install ADA-compliant showers and walkways in the pods, and have not given him his wheelchair. He also states that he brings a Monell claim against Dunklin County Jail because it has a policy to refuse to install ADA-compliant facilities. Plaintiff also states that he brings a state law claim of breach of duty against Holder, Nicole Green, Ashley Green, and Jimmy Smith for violating the ADA because they had a duty to ensure the jail was ADA-compliant but did not do so. Plaintiff also states he brings state law negligence claims against these same defendants for violating the ADA.

         Plaintiff also alleges that the call button in his cell has been disabled and the windows have been covered with brown boards, and that this would make it hard for him to call for help in case of an emergency. Plaintiff alleges he is housed in a cell in the booking area instead of in a pod, that he cannot use the telephone unless he screams and yells for a corrections officer to stop what they are doing and let him use it, and he can only use the kiosk after 10:00 p.m., which is the official recreation time for inmates housed in the booking area. He also alleges he is denied outdoor recreation, and he states that Nicole Green, Ashley Green and Jimmy Smith all violated his Eighth Amendment rights by denying it. He also alleges that Holder is liable in his supervisory capacity because a policy was approved and endorsed by him, and he also alleges that Dunklin County had a policy of denying outdoor recreation to inmates at the jail.

         Plaintiff alleges that the jail is overcrowded, which has led to fights, thefts and increased tension. Plaintiff alleges that Nicole Green and Jimmy Smith violated his Eighth Amendment rights by enforcing a policy of overcrowding at the jail in all of the pods, that Holder is liable in his supervisory capacity because he approved and/or endorsed such policy, and that the jail is liable because it had a policy of overcrowding.

         Plaintiff alleges that he brings an Equal Protection claim because federal and state inmates at the jail are treated differently. Plaintiff alleges that federal inmates receive larger meal portions, and are not charged certain fees that state inmates are charged. He alleges that Nicole Green, Ashley Green, Jimmy ...


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