United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of pro se
plaintiff Lavon Gay, an inmate at Eastern Reception
Diagnostic and Correctional Center ("ERDCC"), 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 $30.93. 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
plaintiffs account indicates an average monthly deposit of
$154.67. Plaintiff has insufficient funds to pay the entire
filing fee. Accordingly, the Court will assess an initial
partial filing fee of $30.93, which is 20 percent of
plaintiff s average monthly deposit.
Standard on Initial Review
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.
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.
brings this prisoner civil rights claim under 42 U.S.C.
§ 1983 against defendants the City of St. Louis; the St.
Louis Metropolitan Police Department; and Police Officers
Curtis Anthony Ford, Andrew Michael Brown, Timothy Nolan, and
Ellis C. Brown. Plaintiff states that on September 26, 2016,
he was arrested for first degree assault of a law enforcement
officer. While taking plaintiff into custody, Officer Timothy
Nolan pointed his gun at plaintiff and demanded that he get
on the ground. He then placed plaintiff in handcuffs and
assisting Officers Andrew Brown, Curtis Ford, and Ellis Brown
approached. The officers began assaulting plaintiff while he
lay on the ground cuffed. Defendants Ellis Brown, Timothy
Nolan, and Curtis Ford began kicking plaintiff in the face
and head. Once additional officers arrived, plaintiff was
taken to Barnes Hospital for treatment.
alleges he suffered permanent physical and psychological
trauma arising out of this event. For damages, he seeks
facial reconstruction surgery, medical treatment, and $5
Fourth Amendment protects citizens from being seized through
excessive force by law enforcement officers. To establish a
constitutional violation under the Fourth Amendment's
right to be free from excessive force, the test is whether
the amount of force used was objectively reasonable under the
particular circumstances." Thompson v. City of
Monticello, Ark, ___ F.3d ___, 2018 WL 3322315, *2 (8th
Cir. Jul. 6, 2018) (internal quotations and citations
omitted). Relevant considerations are whether the suspect
poses an immediate threat to the safety of the officers, and
whether he is actively resisting arrest. Id.
plaintiff alleges he was handcuffed and lying on the ground
when the officers began kicking him in the head and face. He
was not posing any threat to the safety of the officers, and
he was not actively resisting arrest. On initial review, the
Court finds that plaintiff has stated a plausible Fourth
Amendment violation against defendant Officers Timothy ...