United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of plaintiff
Rodney Cunningham (registration no. 506801), an inmate at
Northeast Correctional Center (“NECC”), for leave
to commence this action without payment of the required
filing fee. For the reasons stated below, the Court finds
that the plaintiff does not have sufficient funds to pay the
entire filing fee and will assess an initial partial filing
fee of $10.20. See 28 U.S.C. § 1915(b)(1).
Furthermore, after reviewing the complaint, the Court will
partially dismiss the complaint and will order the Clerk to
issue process or cause process to be issued on the
non-frivolous portions of the complaint.
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 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.
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. A review of
plaintiff's account indicates an average monthly deposit
of $51.00. Plaintiff has insufficient funds to pay the entire
filing fee. Accordingly, the Court will assess an initial
partial filing fee of $10.20.
U.S.C. § 1915(e)
to 28 U.S.C. § 1915(e)(2)(B), the Court must 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 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);
Denton v. Hernandez, 504 U.S. 25, 31 (1992). 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). A complaint fails to state a
claim 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
Rodney Cunningham, an inmate at NECC, brings this action
pursuant to 42 U.S.C. § 1983 alleging violations of his
civil rights. Named as the sole defendant in this action is
Correctional Officer John Sharpe. Plaintiff brings this
action against Sharpe in both his individual and official
asserts that Correctional Officer John Sharpe intentionally
placed him in danger by releasing him from his secured cell
so that another inmate would have the ability to assault him.
Plaintiff alleges that Sharpe then attempted to
“cover-up” his actions by falsely accusing
plaintiff of fighting and giving him a conduct violation for
seeks monetary damages in this action for defendant
Sharpe's purported intentional acts.
state a failure-to-protect claim, a plaintiff is required to
allege that defendants were aware of facts from which they
could infer the existence of a substantial risk of serious
harm to him, they actually drew the inference, and they
failed to take reasonable steps to protect him. See
Farmer v. Brennan, 511 U.S. 825, 836-38, 844 (1994).
Assault by a fellow inmate constitutes “serious
harm.” Jensen v. Clarke, 94 F.3d 1191, 1198
(8th Cir. 1996). And a single incident of violence may, in
some circumstances, support a failure-to-protect claim.
See Young v. Selk, 508 F.3d 868, 870-73 (8th Cir.
2007) (discussing potential for substantial risk where inmate
told officials of cellmate's threats, requested to be
removed from cell immediately, said it was an emergency, and
was subsequently attacked).
Court finds that in this early stage of the litigation,
plaintiff has alleged enough to support a failure to protect
claim in this instance. The Court, will therefore, request that
the Clerk issue process on ...