United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of plaintiff Ralph
Baby Jones, a prisoner, for leave to commence this action
without payment of the required filing fee. For the following
reasons, the Court will grant plaintiffs motion, and assess
an initial partial filing fee of $40.97. In addition, the
Court will dismiss all but plaintiffs individual capacity
claims against Ryan Buscemi and Edward Gonzales.
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 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.
has submitted an affidavit and a certified copy of his prison
account statement for the period immediately preceding the
submission of his complaint. The account statement shows an
average monthly deposit of $204.84, and an average monthly
balance of $25.13. The Court will therefore order plaintiff
to pay an initial partial filing fee of $40.97, which is
twenty percent of his average monthly deposit.
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 679.
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).
an inmate at the Potosi Correctional Center, brings this
action pursuant to 42 U.S.C. § 1983 for violation of his
constitutional rights. He seeks monetary relief against
Randall H. Davis (a bail bondsman), Johnathan Alfaro (a
"bounty hunter"), and St. Louis City police
officers Ryan Buscemi and Edward Gonzales, III. Plaintiff
sues all defendants in an official and individual capacity.
to the complaint, plaintiff was driving in St. Louis on
February 12, 2014 when an unknown vehicle intentionally
swerved into his lane, causing a collision. Plaintiff sped
away from the scene, and the unknown vehicle followed. After
a long chase, plaintiff saw Officers Buscemi and Gonzales
sitting in a marked police car. Plaintiff approached them to
seek their protection. The unknown vehicle then arrived, and
Davis and Alfaro exited. They identified themselves and
stated they were pursuing plaintiff because he was wanted for
jumping bail. The police officers then took plaintiff into
custody, handcuffing him.
plaintiff was handcuffed, Alfaro said he wished he could
"do something" to plaintiff. (Docket No. 1 at 5).
Buscemi replied: "Go ahead I ain't seen
nothing." Id. Plaintiff states: "[g]etting
the green-light to assault me from Officer Buscemi and the
other two men, standing there, Alfaro walked over to me, as I
laid on the ground handcuffed, and began stomping on my
leg/thigh." Id. Alfaro then raised plaintiff up
and punched him very hard in the right eye. The police
officers summoned paramedics, who took plaintiff to St. Louis
University Hospital. Plaintiff was told his eye would have to
be surgically removed. He seeks $3.5 million in damages.
claims against Davis and Alfaro are not cognizable in these
proceedings. To state a claim under 42 U.S.C. § 1983, a
plaintiff must allege that (1) the defendant acted under
color of state law, and (2) the defendant's alleged
conduct deprived the plaintiff of a federally-protected
right. Schmidt v. City of Bella Villa,557 F.3d 564,
571 (8th Cir. 2009). A person acts under color of state law
when he acts in his official capacity "clothed with the
authority of state law, " or acts under
"pretense" of law by purporting to act with
official power. See West v. Atkins,487 U.S. 42, 49
(1988), Parker v. Boyer,93 F.3d 445, 447-48 (8th
Cir. 1996). The requirement that a defendant acted under
"color of state law" is jurisdictional. Polk
County v. Dodson,454 U.S. 312, 315 (1981). Private
conduct is beyond the ...