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Kulhanek v. Griffith

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

January 23, 2018

BRANDON KULHANEK, Plaintiff,
v.
CINDY GRIFFITH, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the motion of plaintiff Brandon Kulhanek, who is currently incarcerated at Potosi Correctional Center (“PCC”), for leave to commence this civil action without prepayment of the required filing fee. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $2.91. See 28 U.S.C. § 1915(b)(1). 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 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.

         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 plaintiff's account indicates an average monthly deposit of $14.59. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $2.91, which is 20 percent of plaintiff's average monthly deposit.

         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.

         Pro se complaints are to be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976). However, they still must allege sufficient facts to support the claims alleged. Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004); see also Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980) (even pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of law). Federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint.” Stone, 364 F.3d at 914-15. In addition, giving 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 is an inmate at the Potosi Correctional Center. He brings this action pursuant to 42 U.S.C. § 1983 against. He sues all thirty-seven (37) named defendants in both their individual and official capacities.

         Plaintiff's complaint numbers twenty-one (21) handwritten pages and includes a declaration from another inmate. Plaintiff alleges in his complaint that on or about January 25, 2016, he was placed in a single-man cell in the Administrative Segregation unit in PCC. Plaintiff states that he has been in the cell from January 2016, through the present, and he states that he “has no contact with the offender general population and rarely exits his cell, except for searches, three hours [per week] of recreation in the in-house recreation cages and medical.” He asserts that on January 25, 2016, an unknown person at the prison issued a “security order” against plaintiff mandating he be placed in leg shackles and restraints when leaving his cell single Administrative Segregation cell.

         Plaintiff claims that Cindy Griffith (Warden) and Greg Dunn (Chief of Custody), amended the special security order on August 10, 2016, pursuant to an “evil intent” requiring correctional officers who took plaintiff from his cell on a daily basis, to restrain plaintiff by “hinged handcuffs, ” leg shackles, ” and “elbow shackles.” Plaintiff claims that Griffith and Dunn amended the security order on February 21, 2017, pursuant to an “evil intent, ” requiring mechanical restraints of leg shackles, and arm restraints, as well as physical pat down searches and cell and property searches three times a day. Plaintiff asserts that this order was modified by defendants Griffith and Dunn on February 23, 2017, to include body cavity searches as well three times daily, and plaintiff claims that this was a result of “collusion” by Shift Commanders Rick Menteer and Will Hunter.

         Plaintiff claims that on March 1, 2017, Griffith and Dunn placed plaintiff in a suicide cell in violation of his Eighth Amendment rights, in an effort to humiliate and increase his mental pain and suffering.

         Plaintiff admits that he was told that the reason he was first placed in Administrative Segregation and the security measures were increased was because in February 2017 plaintiff had been found guilty of assault. Moreover, the prison officials ...


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