United States District Court, E.D. Missouri, Northern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the motion of plaintiff
Monte Lee McKee for leave to commence this civil action
without prepayment of the filing fee. (Docket No. 2). Having
reviewed the motion, 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, for the reasons
discussed below, the Court will dismiss plaintiff's
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.
has not submitted an inmate account statement in support of
his motion. 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 certified copy of his
inmate account statement in support of his claim.
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 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. Iqbal, 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
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 plaintiff's 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).
Plaintiff is currently incarcerated at the Northeast
Correctional Center (NCC) in Bowling Green, Missouri. (Docket
No. 1 at 2). He brings this action pursuant to 42 U.S.C.
§ 1983. The sole named defendant is the State of
Missouri. The complaint is handwritten on a Court-provided
civil complaint form. There are a number of grievances
attached to the complaint, which will be treated as part of
focus of plaintiff's complaint is the nineteen days he
allegedly spent on a bunk in NECC's day room. (Docket No.
1 at 5; Docket No. 1-3 at 2). He states that the bunks in the
day room present safety issues and are a fire hazard. At
night, he cannot sleep because of the noise and
“nightmares of [getting] hurt.” (Docket No. 1-3
at 2). He asserts that the bunks in the day room are illegal,
and that the Department of Corrections has not provided
adequate space. (Docket No. 1 at 2; Docket No. 1-3 at 8). He
further claims that NECC is violating its own policies by not
providing him a cell based on his offender classification.
(Docket No. 1-3 at 3). Plaintiff notes that the bunks in the
day room have since been removed, an action that he
attributes to the federal government. (Docket No. 1-3 at 5).
also makes a number of other complaints unconnected to the
placement of bunks in the day room. He states that his
recreation time - and the recreation time of other inmates -
is often late and sometimes cancelled. (Docket No. 1-3 at 1).
He accuses unnamed correctional officers of sleeping on duty,
playing video games at work, bringing in contraband
cigarettes, and not checking on inmates often enough. (Docket
No. 1 at 5; Docket No. 1-3 at 2). He also claims that there
is too much dirt in the air due to buildup in the vents.
(Docket No. 1-3 at 2). Finally, he states that it took him
months to get a medical appointment for a prostate issue, and
that the treatment they prescribed did not work. (Docket No.
1-3 at 6).
seeks $10, 000 a day for the time he was housed in the day
room bunks. (Docket No. 1 at 5). In the attached grievances,
plaintiff further states that he is seeking ...