United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of plaintiff Brian
Thomas Higgenbotham, 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 plaintiff does not have sufficient funds to pay the
entire filing fee and will assess an initial partial filing
fee of $5.00. See 28 U.S.C. § 1915(b)(1).
Furthermore, after reviewing the complaint, the Court will
partially dismiss the complaint and will order plaintiff to
file an amended 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 not submitted a prison account statement. As a result,
the Court will require plaintiff to pay an initial partial
filing fee of $5.00. 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"). If plaintiff is unable to
pay the initial partial filing fee, he must submit a copy of
his prison account statement in support of his claim.
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 action under 42 U.S.C. § 1983, naming as a
defendant the Montgomery County Jail LLC and its employees
Lisa Allison (nurse), Eric Foree (jail administrator), and
Jerry Thorpe (deputy). He also names as a defendant Steven
Brooks, who appears to be a fellow inmate. Plaintiff brings
this action against defendants in their official capacities
claims that in October 2017 he slipped on the concrete floor
of the Montgomery County Jail and fractured his skull. Since
this time, he has suffered from seizures, dizziness, severe
pressure in his head, an indentation in his forehead, and
memory loss. Plaintiff states he went to the hospital
eighteen times and was treated by Dr. Silverman, a
neurologist from University Hospital in Columbia, Missouri.
Dr. Silverman recommended that plaintiff follow up with
neurology and an ear, nose, and throat doctor
("ENT"). Plaintiff states that defendants nurse
Lisa Allison and jail administrator Eric Foree
"interfered with" these referrals, and he has never
followed up with neurology and an ENT.
point, plaintiff was attacked at the Montgomery County Jail
by fellow inmate Ray Lee Stevens. Plaintiff alleges defendant
Eric Foree "failed to train his officers resulting in
further injuries to my head from being attacked by inmate Ray
Lee Stevens." Similarly, plaintiff alleges Deputy Jerry
Thorpe "failed to keep inmate Ray Lee Stevens secured in
his cell" while plaintiff took a shower "resulting
in further injuries to my brain and its coverings."
Finally, plaintiff alleges defendant Steven Brooks sexually
assaulted him while he was having a seizure.
initial matter, plaintiff has sued all defendants in their
official capacities. Naming a government official in his or
her official capacity is the equivalent of naming the
government entity that employs the official, in this case
Montgomery County, Missouri. See Will v. Michigan Dep
't of State Police,491 U.S. 58, 71 (1989).
"[N]either a State nor its officials acting in their
official capacity are 'persons' under §
1983." Id. As a result, ...