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Moomey v. Nevorro

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

June 22, 2018

MICHAEL D. MOOMEY, Plaintiff,
v.
JUDGE NEVORRO, et al., Defendants.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon the motions of plaintiff Michael Moomey, an inmate at St. Charles County Department of Corrections, for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $103.15. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the second amended complaint, the Court finds that the second amended complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

         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 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.

         Plaintiff 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 balance of $515.75. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $103.15, which is 20 percent of plaintiff's average monthly balance.

         28 U.S.C. § 1915(e)

         Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may 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 against a defendant who is immune from such relief. An action is frivolous if “it lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious when it is undertaken for the purpose of harassing litigants 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).

         To 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, 129 S.Ct. 1937, 1950-51 (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 1949. Second, the Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51. This is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 1950. The plaintiff is required to plead facts that show more than the “mere possibility of misconduct.” Id. The Court must review the factual allegations in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. 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 1950, 1951-52.

         The Second Amended Complaint

         Plaintiff, an inmate at St. Charles County Department of Corrections, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Plaintiff has named as defendants: Judge Nevorro; Unknown McKelvey; Timothy Lohmar; St. Charles Department of Corrections Medical Staff; and Captain Unknown. Plaintiff names defendants in their official capacities only.

         Plaintiff claims that he has been incarcerated on two misdemeanors for six months and a “$40, 000 bond” but never given a mental health evaluation even though he has a history of mental health needs. Plaintiff additionally asserts that his bond is too high for two misdemeanors.

         Next, plaintiff claims that there was a nine-day period where he was not given his AIDS medication. However, plaintiff does not state exactly who failed to provide him with the AIDS medication, or exactly who he asked for the medication. Plaintiff asserts that he was told by someone on the medical staff that they were waiting to get the medication to provide it to him, and that they did testing on his blood to see if there was a change in his immunodeficiency levels but found no change. Again, plaintiff has failed to name the individual who told him they were unable to get the medication, and he has failed to name the individuals involved in checking his blood levels.

         Last, plaintiff complains that he is being charged for medical care and medicine during his incarceration, and he is not receiving his social security checks while he is incarcerated. He claims that as a result of his incarceration, he has lost his house and the ...


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