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Aikens v. Lewis

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

April 22, 2019

LEVAR AIKENS, Plaintiff,
v.
JASON LEWIS, et al., Defendants.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the motion of plaintiff LeVar Aikens for leave to commence this civil action without prepayment of the required filing fee. The Court has determined that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1), Additionally, the Court will grant plaintiff's motion to file an amended complaint and require plaintiff to file an amended complaint on a Court-provided form within thirty (30) days of the date of this order.

         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 $10.00, until the filing fee is fully paid. Id.

         Plaintiff has not submitted a prison account statement. As a result, the Court will require plaintiff to pay an initial partial filing fee of $1.00. 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.”). If plaintiff is unable to pay the initial partial filing fee, he must submit a copy of his prison account statement in support of his claim.

         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 for relief under § 1983, a complaint must plead more than “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Id. at 679. “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, inter alia, draw upon judicial experience and common sense. Id. at 679.

         Pro se complaints are to be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976). However, they still must allege sufficient facts to support the claims alleged. Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004); see also Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980) (even pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of law). 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, 364 F.3d at 914-15. In addition, giving 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. U.S., 508 U.S. 106, 113 (1993).

         The Complaint

         Plaintiff is currently an inmate at Eastern Reception, Diagnostic and Correctional Center (“ERDCC”). On January 28, 2019, plaintiff filed a complaint pursuant to 42 U.S.C. § 1983. The complaint names Jason Lewis (Warden, Southeast Correctional Center (“SECC”)), Susan Price (Caseworker), Jerry Walls (Correctional Officer), Unknown Hanebrink (Functional Unit Manager), Unknown Gorham (Caseworker), Unknown Krech (Correctional Officer), Rebecca Patterson (Caseworker), Joshua Carter (Caseworker), Bill Stang (Deputy Warden), Unknown Wilson (Property Room Sergeant), Unknown Buhs (Grievance Officer), Lorene Armstrong (Caseworker/Functional Unit Manager), Unknown Wigfall (Functional Unit Manager) and Unknown Vandergriff (Captain) as defendants.

         Plaintiff's allegations are somewhat difficult to discern. However, he appears to be asserting that he had previously been incarcerated at SECC between 2006 and 2007 and had instituted a hunger strike at that time to protest what he believed was prisoner abuse and safety violations occurring involving Paula Phillips and Unknown Vandergriff, who was a Correctional Officer at that time. Plaintiff appears to claim that there was an altercation of some kind resulting in an assault on staff at SECC, after which he was transferred to another prison.

         Plaintiff asserts that he was returned to SECC in December of 2018, and someone on the transportation staff who is unnamed in the present lawsuit noted that he would be “going to the hole” and that “everyone [knew] he was coming” especially Vandergriff.” Plaintiff describes his intake process and how he was to be immediately assigned to Administrative Segregation at SECC to get “readjusted to the population, ” but he does not indicate whether he believes this assignment was somehow a violation of his constitutional rights.[1]

         Additionally, plaintiff describes an event where he self-declared a medical emergency for chest pain, and he was cuffed with his hands behind his back to be evaluated by the medical staff. However, plaintiff does not indicate why this is significant or how it could be construed as deliberate indifference to his serious medical needs in violation of his constitutional rights. Plaintiff asserts that his C-PAP machine was not working in a cell that he was assigned to, but he does not fully indicate his need for the C-PAP or how long he was purportedly denied the availability of the machine.[2]

         Plaintiff also describes an event where his property was given to him piecemeal while he was contained in Administrative Segregation. However, plaintiff does not indicate which defendant allegedly denied him property or enunciate the reasons why he believes this was a purported constitutional violation.[3]

         Next plaintiff complains that he was assigned to a cell that was sometimes used as a suicide cell when he refused to cell with the first cellmate he was assigned. Plaintiff again does not ...


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