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Jones v. Bob Holder

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

December 11, 2017

BOB HOLDER, et al., Defendants.



         This matter is before the Court upon the motion of plaintiff (registration no. 008165), an inmate at Dunklin County Jail, for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that the plaintiff does not have sufficient funds to pay the entire filing fee and will not assess an initial filing fee at this time. Furthermore, after reviewing the complaint, the Court will partially dismiss the complaint and will order the Clerk to issue process or cause process to be issued on the non-frivolous portions of the 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, 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 he only has $.10 in his prison account at this time. Accordingly, the Court will not assess an initial partial filing fee at this time.

         28 U.S.C. § 1915(e)

         Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must 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 from a defendant who is immune from such relief. An action is frivolous if it "lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992). An action is malicious if it is undertaken for the purpose of harassing the named defendants 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). A complaint fails to state a claim if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         The Complaint

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Plaintiff also brings supplemental state law claims against defendants pursuant to 28 U.S.C. § 1367. Named as defendants in this action are: Bob Holder (Sheriff, Dunklin County); Nicole Green (Jail Administrator, Dunklin County Justice Center); Jimmy Smith (Asst. Jail Administrator); Ashley Green (Nurse); and Dunklin County Justice Center. Plaintiff brings this action against defendants in their individual and official capacities.

         Plaintiff states that he arrived at the Dunklin County Jail on June 7, 2017. He claims that he was booked and taken to Pod I, cell #104. Plaintiff asserts that he has suffered with a seizure disorder since he was 19, and he has had to take medications to control his seizures. He claims that around 1:00 am on June 29, 2017, he had a seizure in his cell. He claims that he awoke after the seizure and found himself on the floor of his cell, having fallen from his bunk. Plaintiff claims that his left shoulder was hurt, the left side of his face was purple and swollen and he was fearful.

         Plaintiff claims that after waking up he immediately asked to speak to a nurse, but that there was no nurse on duty at the Dunklin County Jail. He asserts that the unnamed officer on duty merely told him to put in a "sick call request, " despite him having been unconscious for "several hours."

         Plaintiff states that since the time he had the seizure he has suffered from constant pain and migraines, but his requests for treatment to Nicole Green, Jimmy Smith and Ashley Green have been denied and ignored. Plaintiff asserts that these defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. He also claims that they were negligent to his needs, and he asserts a state law claim of intentional infliction of emotional distress.

         Plaintiff additionally asserts that there really is no "sick call procedure" at the Dunklin County Jail. He claims that the only "nurse" at the Jail is Ashley Green, the wife of Nicole Green, the Jail Administrator. Plaintiff states that Ashley Green does not conduct medical rounds or have a sick call procedure in place and does not pass out medications. He asserts that she leaves the medication dispensation to the correctional officers who do not have a medical background. Plaintiff asserts that if an inmate has a serious medical injury, he is not taken to an outside hospital, nor is 911 called; instead the correctional officers take the inmate to "medical observation" near the booking area.

         Plaintiff claims that on the weekends Ashley Green is not available at all, even for a medical emergency, and there are no emergency buttons in the cells. In this way, plaintiff claims that the Jail has an overall custom and policy of failing to provide ...

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