United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of plaintiff Terry
Lewis Benford 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 assess an
initial partial filing fee of $3.78. See 28 U.S.C.
§ 1915(b)(1). In addition, for the reasons discussed
below, the Court will dismiss all but the individual capacity
claims against defendants Ashley Grisham, Gina Whitlock and
Dr. Charles Pewitt.
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 an inmate
account statement showing an average monthly balance of
$18.89. The Court will therefore assess an initial partial
filing fee of $3.78, which is twenty percent of plaintiff s
average monthly balance.
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 sense." Id.
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 plaintiffs 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).
present, plaintiff is an inmate at the Eastern Reception,
Diagnostic and Correctional Center. At the time of the events
giving rise to the complaint, he was incarcerated at the
Dunklin County Justice Center. He brings this action pursuant
to 42 U.S.C. § 1983 against Dunklin County, Nicole
Green, Ashley Grisham, Gina Whitlock, and Dr. Charles Pewitt.
He sues the defendants in an official and individual
capacity. In the complaint, plaintiff states that he filed
grievances because he was not given medical care, including
insulin, for diabetes. He states he followed the jail's
grievance procedure, but now believes he must file this
lawsuit because his federally-protected rights were violated.
sets forth his claims in the format of describing grievances
he has filed. Liberally construed, however, he can be
understood to allege that, in approximately October and/or
November of 2017, Whitlock, Grisham, and Pewitt were aware of
the fact he was diabetic, but refused to provide him with the
necessary medical treatment, including insulin. He also can
be understood to allege that Grisham denied plaintiff
necessary medical evaluations because he was unable to pay
for them. The Court concludes, for purposes of initial
review, that plaintiff has stated claims of deliberate
indifference against Whitlock, Grisham, and Pewitt in their
Dunklin County, and the official capacity claims against the
individual defendants, will be dismissed. To state a claim
against a municipality, or against a government official in
his or her official capacity, a plaintiff must allege that a
policy or custom of the government entity is responsible for
the alleged constitutional violation. Monell v. Dep't
of Social Services,436 U.S. 658, 690-91 (1978),
Will v. Michigan Dep't of State Police, 491 U.S.
58, 71 (1989). The instant complaint contains no allegations
that a policy or custom of a government entity was
responsible for the ...