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Ealey v. Larkins

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

February 27, 2019

AUSTIN EALEY[1], Plaintiff,
v.
STEVE LARKINS, et al., Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the motion of plaintiff (registration no. 1280275), an inmate at Southeast Correctional Center ("SECC"), 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 $15.99. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that the 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 plaintiffs account indicates an average monthly deposit of $79.95. Accordingly, the Court will assess an initial partial filing fee of $15.99.

         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 plaintiffs proffered conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951 -52.

         The Complaint

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Plaintiff names the following individuals as defendants in this action: Steve Larkins (Warden at Eastern Reception, Diagnostic and Correctional Center ("ERDCC")); Stanley Paine (Asst. Warden); and Chris Rosko (Regional Medical Director, Missouri Department of Corrections). Plaintiff sues defendants in their individual and official capacities.

         Plaintiff asserts that in June of 2018 through an unknown time period he was being detained at ERDCC. At some point, plaintiff states he had a "lump on his toe" and an abscessed tooth for which he filled out a medical request form to see a doctor. Plaintiff asserts that at ERDCC, inmates place the medical request form in a box near the chow hall, and a nurse usually comes to empty the box and adds inmates to the "sick call" list within a "day or two." Plaintiff states that once an inmate has been seen by a nurse, an inmate is not immediately told when they will be seen by the doctor. Plaintiff reports that he did not see a rhyme or reason why some inmates were seen, as some he believed to have minor ailments were seen before some inmates he believed to have major ailments.[2]

         Plaintiff complains that once you are called to sick call to actually see the doctor, inmates are expected to sit quietly, and he states that if inmates are seen talking, they are sent back to their cell to "start the process again." Plaintiff asserts that some of the nurses and doctors ask helpful questions and some review your health problems fast, and "in the end, regardless which nurse or doctor you see, the reality is the same - they will reschedule you for a later time with no help at all.. ..or you will be back in there to see them again" at some later time.

         Plaintiff does not state in his complaint whether he was provided with any relief for his toe or his abscessed tooth at the time he was at ERDCC. In fact, he does not mention his own medical needs or whether they were treated by the doctors at ERDCC, except to state that he once sought treatment for those needs. He has since been transferred to SECC.

         In his complaint, plaintiff asserts that he is bringing a "Monell" claim, asserting that defendants are not attending to medical needs at ERDCC. He claims that defendants have "an unconstitutional policy and custom of denying inmates medical care for not having a sick call policy." Plaintiff also states he is bringing this against Advanced Correctional Health Care, Inc., although he has not identified this entity in the caption of his ...


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