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McCarver v. Crawford County Sheriffs Department

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

March 22, 2019

REGGIE L. MCCARVER, Plaintiff,
v.
CRAWFORD COUNTY SHERIFF'S DEPARTMENT, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the motion of plaintiff Reggie L. McCarver for leave to commence this civil action without prepayment of the required filing fee. (Docket No. 2). Having reviewed the motion and the financial information submitted in support, the Court has determined that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial partial filing fee of $0.93. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court will dismiss plaintiffs complaint without prejudice.

         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 the Court each time the amount in the prisoner's account exceeds $10.00, until the filing fee is fully paid. Id.

         In support of the instant motion, plaintiff submitted a certified inmate account statement. (Docket No. 4). The account statement shows an average monthly deposit of $4.67. The Court will therefore assess an initial partial filing fee of $0.93, which is 20 percent of plaintiffs average monthly deposit.

         Legal Standard on Initial Review

         Under 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. To state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief, which is more than a "mere possibility of misconduct." Ashcroft v. lqbal, 556 U.S. 662, 679 (2009). "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 upon judicial experience and common sense. Id. at 679. The court must "accept as true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016). 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 is not required to "accept as true any legal conclusion couched as a factual allegation").

         When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A "liberal construction" means that if the essence of an allegation is discernible, the district court should construe the plaintiffs complaint in a way that permits his or her claim to be considered within the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints are required to 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). See also Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004) (stating that federal courts are not required to "assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint"). In addition, affording a pro se complaint the benefit of a liberal construction does not mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

         The Complaint

         Plaintiff is currently incarcerated at the Western Reception, Diagnostic & Correctional Center in St. Joseph, Missouri. At all times relevant to this complaint, however, he was an inmate at the Crawford County Jail in Steelville, Missouri. He brings this action under 42 U.S.C. § 1983. He names the Crawford County Sheriffs Department, Crawford County Jail Administration, Darin Layman, and Berry Ray as defendants. (Docket No. 1 at 1). Defendant Ray is sued in his individual capacity only. (Docket No. 1 at 4). The remaining defendants are sued in both their official and individual capacities. (Docket No. 1 at 2-3).

         Plaintiff states that sometime on the week of August 19, 2018 to August 25, 2018, he was attacked in E-pod of the Crawford County Jail. (Docket No. 1 at 4). His alleged attacker was federal inmate Berry Ray. Plaintiff claims Ray used a broomstick to strike, puncture, and scratch him. He also states that Ray bit him. As a result of this incident, plaintiff suffered a hurt hand, strained back and side, and punctures or scratches to his neck and stomach. His left arm was also bitten. He was treated with ibuprofen and antibiotic ointment. (Docket No. 1 at 5). Along with these injuries, plaintiff asserts that he suffers from emotional distress and night terrors. (Docket No. 1 at 4).

         Plaintiff claims that the broomstick used in Ray's attack "was left out unguarded around inmates" along with a chair, electric cord, and electric hair clippers. (Docket No. 1 at 5). He states that these items were left "unattended and unguarded" for several hours each week for the purpose of providing haircuts to inmates. Plaintiff alleges that the Crawford County Sheriffs Department and the Crawford County Jail Administration "was well aware that a broomstick handle" could be used as a deadly weapon. He further asserts that defendant Darin Layman, the Crawford County Sheriff, was fully aware of the process being used to give inmates haircuts.

         Plaintiff is seeking $570, 000 in damages for his pain and suffering, scars and body aches, and for his ...


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