United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of plaintiff Kevin
Anthony Straub, a prisoner, for leave to commence this civil
action without prepayment of the required filing fee. The
Court will grant the motion, and will not assess an initial
partial filing fee at this time. Additionally, for the
reasons discussed below, the Court will dismiss the
complaint, without prejudice.
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 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.
did not submit an inmate account statement in support of the
instant motion. However, he avers that he receives no pay or
wages, that he has had no other source of income in the past
12 months, and has no money in any account. The Court will
therefore not require plaintiff to pay an initial partial
filing fee at this time. See 28 U.S.C. §
Standard on Initial Review
28 U.S.C. § 1915(e)(2), 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. An action is frivolous if it
"lacks an arguable basis in either law or fact."
Neitzke v. Williams, 490 U.S. 319, 328 (1989). An
action fails to state a claim upon which relief can be
granted 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 (2007).
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." Ashcroft v. Igbal, 556 U.S. 662, 678
(2009). Determining whether a complaint states a plausible
claim for relief is a context-specific task that requires the
reviewing court to draw upon judicial experience and common
sense. Id. at 679. The court must assume the
veracity of well-pleaded facts, but need not accept as true
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements."
Id. at 678 (citing Twombly, 550 U.S. at
555); see also Brown v. Green Tree Servicing LLC,
820 F.3d 371, 372-73 (8th Cir. 2016) (stating that court must
accept factual allegations in complaint as true, but
"does not accept as true any legal conclusion couched as
a factual allegation").
se complaints must be liberally construed. Estelle
v. Gamble, 429 U.S. 97, 106 (1976). This means that if
the essence of an allegation is discernible, the court should
construe the complaint in a way that permits the plaintiffs
claim to be construed within the proper legal framework.
Solomon v. Petray, 795 F.3d 777, 787 (8th Cir.
2015). However, even pro se complaints must allege
facts which, if true, state a claim for relief as a matter of
law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th
Cir. 1980). Federal courts are not required to "assume
facts that are not alleged, just because an additional
factual allegation would have formed a stronger
complaint." Stone v. Harry, 364 F.3d 912,
914-15 (8th Cir. 2004).
brings this action pursuant to 42 U.S.C. § 1983 against
two Missouri Department of Corrections employees: Cindy
Griffith (the Deputy Division Director of the Division of
Adult Institutions), and Brad Rentfro (a Corrections Case
Manager). Plaintiff sues the defendants in their individual
sets forth his allegations in the form of a long and rambling
narrative that is written in the third person. However, he
can be understood to allege that he was wrongly charged with
damaging a state-issued smock. He repeatedly alleges that a
person who is held in a suicide cell should not be held
responsible for his or her actions. For example, he writes:
"any person being placed in a suicide cell is no longer
competent to be held accountable for anything he or she has
done so for any person to be still held in respect as a sane
person would go against the law one cannot proceed with any
person that is ruled as an incompetent subject to do so would
be breaking the law ...", and "whatever happens in
the suicide cell must not place him in violation of breaking
any rules because such person's state of mind is not held
and respect to understand what is truly right or wrong
because he is not in the right frame of mind to be
responsible of his actions." (Docket No. 1 at 2-3).
Plaintiff can also be understood to allege that he was
wrongly made to pay $250 in restitution to replace the smock,
and given meal loaf and 20 days in disciplinary segregation.
the complaint, plaintiff filed six pages of written material.
This material includes a Disciplinary Action Report
demonstrating that plaintiff had a disciplinary hearing on
January 23, 2018. A reporting officer's written report
was introduced as evidence to show that, during a security
check, plaintiff was observed to have made a noose out of his
state-issued smock. It was recommended that plaintiff be
given meal loaf, spend 20 days in disciplinary segregation,
and reimburse the State $250 for the damaged smock. It is
indicated that plaintiff understood his rights, did not
request witnesses, pleaded guilty to the charges, and waived
further hearing. The Report is signed by plaintiff, and by
defendant Rentfro. The written materials also include
documents demonstrating that plaintiff filed an Informal
Resolution Request ("IRR"), a Grievance, and a
Grievance Appeal to complain about the punishment and
restitution imposed, all of which were considered and denied.
The Court considers these documents as part of the complaint.
See Fed. R. Civ. P. 10(c).
relief, plaintiff seeks compensatory damages of $4, 500,
punitive damages of $1, 100, and nominal damages of $1. He
states that the smock did not cost $250. In support, he
states that, after he paid that amount, the prison bought
five more smocks and he only ripped ...