United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the multiple recent filings
of pro se plaintiff Brandon Nicholas Barnett, an
inmate at Southeast Correctional Center (“SECC”).
On January 31, 2019, the Court directed the Clerk of Court to
issue process upon plaintiff's 42 U.S.C. § 1983
complaint allegations of deliberate indifference to his
serious medical needs as to defendants Nina Hill, Dr.
Winklemeyer, and Roxanne Anderson. The Court dismissed the
complaint as to all other named defendants. Plaintiff was
also directed to pay an initial partial filing fee of $1.00
within twenty-one (21) days. As of February 21, 2019,
defendants Anderson and Hill have waived service and their
answers are due by April 1, 2019. ECF Nos. 13, 14.
March 18, 2019, plaintiff informed the Court that he had gone
through the proper “green check” procedure at
SECC for issuance of the $1.00 filing fee to be paid to the
Court. However, the fee has not been paid and plaintiff's
requests for assistance from SECC staff are going unanswered.
ECF No. 15. On March 21, 2019, plaintiff filed motions for
injunctive relief (ECF No. 16) as to the processing of his
filing fee payment, and for waiver of court fees (ECF No.
17). On March 25, 2019, plaintiff filed a motion for
injunction and temporary restraining order (ECF No. 18) and a
supplemental to his complaint (ECF No. 19), regarding
allegations of a delay in medical treatment in retaliation
for the filing of this suit. For the reasons discussed below,
plaintiff's motion for waiver of court fees will be
granted and his motion for injunctive relief as to the
processing of his filing fee payment will be denied as moot.
Plaintiff's motion for a temporary restraining order
regarding his medical treatment will be denied, but the Court
will order that defendant Hill respond to plaintiff's
motion for injunctive relief by April 8, 2019.
for Waiver of Court Fees (ECF No. 17)
January 31, 2019, the Court reviewed plaintiff's
financial information, granted his motion for leave to
proceed in forma pauperis, and assessed an initial
partial filing fee of $1.00 pursuant to 28 U.S.C. §
1915(b)(1). ECF No. 8. 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.”).
states in his March 18, 2019, filing that he signed a prison
“green check” authorizing the $1.00 filing fee
payment to the Court from his prison account. ECF No. 15.
However, three days later, plaintiff filed a motion to waive
the $1.00 court fee in which he stated that his payment of
$1.00 has not been processed by SECC officials in retaliation
for his filing of this suit. ECF No. 17. At one point in the
filing, plaintiff states that he carries a debt balance on
his prison account of $1, 375.50. Id. at 1. However,
later in the same filing, he states that he had “a
dollar and 98 cents left on my account to pay the court
fee.” Id. at 2. Plaintiff admits that he was
told to refile the “green check” due to not
having sufficient money in his account, but he denies that
there was a lack of funds to pay the court fee. Regardless,
to the extent that plaintiff seeks a waiver of the $1.00
court fee, the Court will grant his motion. Upon
consideration of the financial information provided by
plaintiff, the Court finds that plaintiff is unable to pay
any portion of the filing fee. See 28 U.S.C. §
1915(b)(4) (“In no event shall a prisoner be prohibited
from bringing a civil action . . . for the reason that the
prisoner has no assets and no means by which to pay the
initial partial filing fee.”).
for Injunctive Relief as to Processing of Filing Fee (ECF No.
In his March 21, 2019, motion for injunctive relief plaintiff
asks the court:
to intervene and hold April Sample, manager or director of
SECC business office, and Jason Lewis in contempt of court
for tampering with federal mail (U.S. postage mail) and
retaliating against plaintiff by withholding process of his
green check … And also taking plaintiff['s] mail
on 2-11-19. ECF No. 16 at 1.
later in the motion, plaintiff states that he seeks relief
“if the court doesn't waive [his $1.00 filing]
fee.” Id. Based on this statement, it seems
that plaintiff's motion for injunctive relief is mooted
by the Court's grant of his motion to waive the filing
fee. Therefore, plaintiff's motion for injunctive relief
(ECF No. 16) will be denied as moot.
for Injunction and Temporary Restraining Order as to Delay in
Medical Care (ECF No. 18)
filed another motion for injunction and temporary restraining
order on March 25, 2019. ECF No. 18. In that motion, and his
supplemental document filed the same date (ECF No. 19),
plaintiff describes how he was seen by defendant Dr.
Winklemeyer on January 15, 2019, to discuss his frequent need
to urinate, inability to hold food in his stomach, and
testicle pain. Dr. Winklemeyer referred plaintiff to be seen
by a urologist and to have an endoscopy performed. Plaintiff
says that he confirmed with Nurse Jackie on March 16, 2019,
that the referral and recommendation for endoscopy were in
his medical file. However, according to plaintiff, defendant
Nina Hill is in charge of making the referrals at SECC and
Hill has not made the referral in retaliation against
plaintiff for the filing of this suit. Plaintiff alleges that
this delay in medical care is causing him bodily harm
including testicle and stomach pain, deterioration of his
body, and blood in his stool. Plaintiff asks that the court
“order Nina Hill, Jason Lewis, and Molly
Leija [to] have [him] sent to urologist and to
get endoscopy done and have specialist orders carried out by
8-21-19 or before.” ECF No. 18 at 1.
a preliminary injunction should issue involves consideration
of (1) the threat of irreparable harm to the movant; (2) the
state of the balance between this harm and the injury that
granting the injunction will inflict on other parties
litigant; (3) the probability that movant will succeed on the
merits; and (4) the public interest.” Dataphase
Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th
Cir. 1981). These factors are also considered to determine
the propriety of a temporary restraining order. See S.B.
McLaughlin & Co., Ltd. v. Tudor Oaks Condo. Project,
877 F.2d 707, 708 (8th Cir. 1989).
balancing the equities no single factor is
determinative.” Dataphase, 640 F.2d at 113.
The relevant inquiry is “whether the balance of
equities so favors the movant that justice requires the court
to intervene to preserve the status quo until the merits are
determined.” Id. The burden of proof is on the