United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of plaintiff Larico
Coleman, 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. See 28 U.S.C.
§ 1915(b)(4). In addition, for the reasons discussed
below, the Court will direct plaintiff to file a third
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 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.
support of the instant motion, plaintiff submitted a
certified inmate account statement. The statement includes a
summary of plaintiff's account activity for the period
March 1, 2017 through September 21, 2017, which shows an
average monthly deposit of $2.07 and an average monthly
balance of $.02. The statement also includes a record of
account activity beginning on August 10, 2017 and ending on
September 19, 2017, at which time plaintiff's account
balance was $.04. The Court will therefore 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 his inmate
account, pursuant to 28 U.S.C. § 1915(b)(2), until the
$350.00 filing fee is paid in full.
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).
Second Amended Complaint
is an inmate at the Missouri Eastern Correctional Center. He
filed his first complaint in this case on August 21, 2017.
Shortly thereafter, he filed two supplemental documents, and
then filed an amended complaint. However, he failed to sign
the amended complaint, and the Court returned it to him for
his signature. Plaintiff promptly filed a second amended
complaint, which he signed, and which this Court now reviews
pursuant to 28 U.S.C. § 1915(e).
brings this action pursuant to 42 U.S.C. § 1983 against
Brandon Caid, the Mississippi County Sheriff's
Department, the Mississippi County Detention Center, Sally
Gammons, and Brandon Morgan. The “Statement of
Claim” section has been removed from the second amended
complaint, and plaintiff has attached a copy of a Mississippi
County Detention Center inmate grievance form. In the form,
plaintiff describes seeing “the nurse” and
receiving inadequate care for a serious foot condition, and
suffering pain as a result. (Docket No. 10 at 6). He states
that he seeks injunctive and monetary relief.
after filing the second amended complaint, plaintiff wrote a
letter to the Clerk of the Court. Therein, plaintiff writes
that he repeatedly complained to the jail administrator about
his foot condition, that Gammons was indifferent to his
suffering and his foot condition worsened as a result, and a
nurse practitioner (whose name is illegible) allowed
plaintiff's foot condition to worsen, causing weeks of
suffering. Plaintiff writes that Gammons did not try to help
him until Caid told her that plaintiff needed to see a
doctor, and that when plaintiff finally saw the doctor on
June 9, 2017, the doctor asked how plaintiff's foot got
to that point. Plaintiff states he cannot walk without pain.
Clearly, plaintiff is attempting to set forth claims that his
constitutional rights were violated when he was deprived of
medical care for a serious foot condition. However, the
second amended complaint contains no allegations against any
of the named defendants, and sending a letter to the Clerk of
the Court is not the proper way to bring a claim against a
defendant. Because plaintiff is proceeding pro se, the Court
will allow him to file a third amended complaint. Plaintiff
is warned that the filing ...