United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
RICHARD WEBBER UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of plaintiff Terry
Allen Welch for leave to commence this civil action without
prepayment of the required filing fee. For the reasons stated
below, the Court will grant the motion, and allow plaintiff
to proceed without payment of an initial partial filing fee.
Furthermore, for the reasons discussed below, the Court will
dismiss this case, without prejudice.
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. However, according to
§ 1915(b)(4), this Court shall not prohibit a prisoner
“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
case at bar, plaintiff submitted an inmate account statement
showing that he has $0, and is also subject to a $330 debt.
The Court will therefore permit plaintiff to proceed without
payment of the initial partial filing fee, pursuant to 28
U.S.C. § 1915(b)(4).
Standard on Initial Review
28 U.S.C. § 1915(e)(2)(B), the Court is required to
dismiss a complaint filed in forma pauperis if it 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). 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). An action
fails to state a claim upon which relief can be granted 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).
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, 556 U.S. 662, 679 (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 678. Second, the Court
must determine whether the complaint states a plausible claim
for relief. Id. at 679. This is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
plaintiff is required to plead facts that show more than the
“mere possibility of misconduct.” Iqbal,
556 U.S. at 679. The Court must review the factual
allegations in the complaint “to determine if they
plausibly suggest an entitlement to relief.”
Id. at 681. When faced with alternative explanations
for the alleged misconduct, the Court may exercise its
judgment in determining whether plaintiff's proffered
conclusion is the most plausible or whether it is more likely
that no misconduct occurred. Id. at 680-82.
se complaints are to be liberally construed, Estelle
v. Gamble, 429 U.S. 97, 106 (1976), but they still must
allege facts which, if true, state a claim for relief as a
matter of law. Martin v. Aubuchon, 623 F.2d 1282,
1286 (8th Cir. 1980). The Court must weigh all factual
allegations in favor of the plaintiff, unless the facts
alleged are clearly baseless. Denton v. Hernandez,
504 U.S. 25, 32 (1992). 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 v. Harry, 364 F.3d 912,
914-15 (8th Cir. 2004).
brings this action pursuant to 42 U.S.C. § 1983 against
the Pike County Jail, the Pike County Sheriff's
Department, and Stephen Korte, the Sheriff of Pike County.
Korte is sued in his official and individual capacity.
Although plaintiff is presently incarcerated at the Fulton
Reception and Diagnostic Center, the allegations in the
complaint concern events that occurred while he was
incarcerated at the Pike County Jail.
alleges that his rights have been violated “in many
ways.” (Docket No. 1 at 5). He claims he was not
allowed to see a nurse because he did not have $10, and he
believes he should receive free medical care. He claims the
Pike County Jail is responsible “for the food or lack
thereof, ” and for “poor shower conditions”
that have resulted in plaintiff being afflicted with foot
fungus. Id. He states that he holds the Sheriff and
the Sheriff's Department “responsible for transfers
and the violation of my legal right.” Id. He
also claims that he and other inmates must hold religious
services in a noisy environment, the diet provides
insufficient calories, inmates are charged $10 to see a
nurse, “ridiculous bonds” are placed on inmates,
there is no law library, and “they are ...