United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of plaintiff John
Allen Birky, Jr., a prisoner, for leave to commence this
civil action without prepayment of the required filing fee.
Having reviewed the motion and the financial information
submitted in support, the Court has determined to grant the
motion, and assess an initial partial filing fee of $1.80.
See 28 U.S.C. § 1915(b)(1). 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.
support of the instant motion, plaintiff submitted an inmate
account statement showing an average monthly deposit of
$9.00, and an average monthly balance of $4.71. The Court
will therefore assess an initial partial filing fee of $1.80,
which is twenty percent of plaintiffs average monthly
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 may 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 may 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).
Court must liberally construe complaints filed by laypeople.
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 layperson's claim to
be considered within the proper legal framework."
Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015)
(quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004)). 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, Stone, 364 F.3d at 914-15, nor
are they required to interpret procedural rules so as to
excuse mistakes by those who proceed without counsel. See
McNeil v. United States, 508 U.S. 106, 113 (1993).
is an inmate at the Moberly Correctional Center
("MCC"). He brings this action pursuant to 42
U.S.C. § 1983 against Dean Minor, the MCC warden.
Plaintiff placed a clear check mark indicating his intent to
sue the defendant in his official capacity. It appears he may
have also placed a mark indicating his intent to sue the
defendant in his individual capacity as well, although this
mark is not as clear. However, liberally construing the
complaint, the Court will presume that plaintiff intends to
sue the defendant in both his individual and official
capacity. Plaintiff alleges as follows.
morning of February 1, 2018, plaintiff began to feel sick. He
returned to his cell, which was located on the top walk, and
began to open his door. He then fainted, hit his head on the
railing, fell to the floor, and slid under the bottom rail.
As plaintiff was dangling halfway off the walkway, his
cellmate grabbed his legs, and then summoned other inmates
who helped pull plaintiff back onto the walkway. Plaintiff
was then taken to the medical department for evaluation of a
lump on his head. Plaintiff makes no attempt to allege he
received inadequate medical care.
to the complaint are copies of grievances plaintiff filed
about the incident, seeking a total of $4 million in damages.
In those grievances, plaintiff wrote that he suffers from a
heart condition, he identified himself as disabled, and he
referred to the Americans With Disabilities Act
("ADA"). Also attached are the responses to
plaintiffs grievances, in which it is noted that the hand
rails were in good repair, and met or exceeded OSHA and
industry standards regarding hand rail design. It is further
noted that plaintiff was reassigned to a cell on the bottom
walk to eliminate the potential for him to fall from the top
prayer for relief, plaintiff states he suffers anxiety and
stress because the staff does not care about inmate safety.
He also states he had a sore neck for six weeks after the
fall, and that he suffers from headaches he believes resulted
from fainting and hitting his head. He asks this Court to
order the Missouri Department of Corrections and MCC to place
another rail so that the opening between the rail and floor
is no greater than six inches. He also seeks "one