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Bova v. Echele

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

May 1, 2018

ANTHONY M. BOVA, Plaintiff,
v.
DEBBIE ECHELE, et al., Defendants.

          MEMORANDUM AND ORDER

          JEAN C. HAMILTON UNITED STATES DISTRICT JUDGE

         Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42 U.S.C. § 1983. For the reasons stated below, the Court will grant the motion, and allow plaintiff to proceed without payment of an initial partial filing fee. In addition, for the reasons discussed below, the Court will dismiss this case, without prejudice.

         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 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 filing fee.”

         Plaintiff has not submitted an inmate account statement. He states he was unable to obtain his account statement because the “Trust Fund Supervisor refused to provide me with a copy of it.” The Court will therefore permit plaintiff to proceed without payment of an initial partial filing fee, pursuant to 28 U.S.C. § 1915(b)(4). See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the Court with a certified copy of his prison account statement, the Court should assess an amount “that is reasonable, based on whatever information the court has about the prisoner's finances.”)

         Standard of Review

         Under 28 U.S.C. § 1915(e), 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, 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 draw on its judicial experience and common sense. Id. at 679.

         When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled facts as true. Furthermore, the Court liberally construes the allegations.

         The Complaint

          Plaintiff brings this action under § 1983, the Rehabilitation Act, and Missouri state law against St. Charles County and the following staff at the St. Charles County Jail: Debbie Echele (Medical Director); Jessica Richard (Nurse); Chrissy [Unknown] (Nurse); Theresa Martin (Nurse); [Unknown] Post (Sergeant); Scott Lewis (Sergeant); and [Unknown] Baker (Sergeant). Plaintiff is an eighteen-year-old pretrial detainee at the St. Charles County Jail, and suffers from chronic asthma. He has been prescribed Advair, a fast-acting daily inhaler, since he was eight years old.

         Plaintiff states that he has been incarcerated in St. Charles County Jail since September or October 2017. During his initial medical screening, plaintiff informed the jail staff that he had chronic asthma and that he needed Advair to relieve his symptoms. He states that an unnamed nurse told him that as a state inmate he would not be treated with Advair because it was cost prohibitive. He was treated with a generic inhaler, described by plaintiff as an “emergency asthma inhaler.” Plaintiff alleges this generic inhaler does not alleviate his symptoms.

         Plaintiff states that he informed medical staff that when he does not take Advair for an extended period of time, he has suicidal thoughts. The nurses told plaintiff to notify medical staff if he began to have suicidal thoughts and he would be immediately placed in A-Block, i.e., the suicide wing of the jail.

         At some point during his incarceration, plaintiff began having breathing problems, sharp pains in his chest, cold sweats, and fevers. He tried to take a nap, but this did not alleviate his symptoms. “All of a sudden, plaintiff began having thoughts of killing himself, after the pain in his chest became too great, and his breathing problems exacerbated. Plaintiff told an on-duty officer, and sent a medical request stating that he wanted to kill himself.” Plaintiff was taken to A-Pod, where he was eventually seen by a psychiatrist. Plaintiff explained that he needed Advair, but the psychiatrist said he “could do nothing about the Advair.” The psychiatrist gave plaintiff medication to help him calm down and sleep. After being treated in A-Pod for two weeks, plaintiff was placed back in M-Pod.

         Plaintiff submitted grievances regarding the failure of medical staff to prescribe Advair. Defendants Debbie Echele, Jessica Richard, Chrissy [Unknown], Theresa Martin, Sergeant Post, and Sergeant Baker responded to plaintiff's grievances, stating that he would remain on the generic inhaler. Plaintiff has also filed grievances stating that ...


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