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Ozment v. Perry County Sheriff's Office

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

February 2, 2018

RICHARD DALE OZMENT, JR., Plaintiff,
v.
PERRY COUNTY SHERIFF'S OFFICE, et al., Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the motion of plaintiff (registration no. 1130120), an inmate at Eastern Reception, Diagnostic and Correctional Center ("ERDCC"), for leave to commence this action without payment 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 not assess a filing fee at this time. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that the complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

         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. Plaintiffs account statement shows a negative balance in an amount of $326.18. Consequently, the Court will not assess a filing fee at this time.

         28 U.S.C. § 1915(e)

         Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may 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 against a defendant who is immune from such relief. An action is frivolous if "it lacks an arguable basis in either law or in fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious when it is undertaken for the purpose of harassing litigants 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).

         To determine whether an action fails to state a claim upon which relief can be granted, the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950-51 (2009). These include "legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements." Id. at 1949. Second, the Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51. This is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. The plaintiff is required to plead facts that show more than the "mere possibility of misconduct." Id. The Court must review the factual allegations in the complaint "to determine if they plausibly suggest an entitlement to relief." Id. at 1951. When faced with alternative explanations for the alleged misconduct, the Court may exercise its judgment in determining whether plaintiffs proffered conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.

         The Complaint

         Plaintiff, an inmate at ERDCC, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights during his incarceration at the Cape Girardeau Detention Center. Plaintiff has named the following as defendants in this action: the Perry County Sheriffs Office; Sergeant Kara Evans; Correctional Officer Sarah Olson; Correctional Officer Unknown Effink; Captain Kraft; Cape Girardeau County Sheriffs Office; Cape Girardeau County Detention Center; Cape Girardeau County Justice Center; Cape Girardeau County Jail; Lieutenant T.C. Stevens of the Cape Girardeau County Sheriffs Office.

         Plaintiff asserts that when he was a pretrial detainee, he requested access to "all Missouri statutes" while he was "being held on hold for the Cape Girardeau County Sheriffs Office" by the Perry County Sheriffs Office, located in Perry ville, Missouri. Plaintiff claims that "the Cape Giradeau Sheriffs County Office was fully aware that even though they transported [him] to the Perry County Sheriffs Office to be held on hold for the Cape Girardeau County Sheriffs Office, that [he] was still booked into the Cape Girardeau Detention Center as an inmate." Plaintiff asserts that during his time on hold in Perry County Jail, he utilized Perry County's request procedures to attempt to gain access to "all Missouri state legal statutes." Plaintiff claims that he was told in response to his requests that he should designate a specific statute or simply ask his attorney to provide him with the legal information he was requesting. It appears from the documents attached to the complaint that plaintiff persisted in requesting access to "all Missouri state legal statutes, " although he was told to narrow his request. Furthermore, although plaintiff was told that the Jail did not have access to all Missouri state legal statutes, but did have access to some legal materials, plaintiff continued to assert that he was in need of access to "all Missouri state legal statutes." Plaintiff states that he believes it was the Jail's responsibility to provide him with all of the Missouri statutes, and it was not his attorney's responsibility.

         Plaintiff states that he needed access to "all Missouri state legal statutes" in order to work on a "stratagem" for his Missouri state criminal action, even though he had been assigned a public defender in his criminal action.[1]

         In his request for relief, plaintiff seeks both injunctive relief ...


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