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Cook v. Kelley

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

April 23, 2019

REX A. COOK, Plaintiff,
v.
DEON KELLEY, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN ROSS UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the motion of plaintiff Rex A. Cook for leave to commence this civil action without prepayment of the required riling 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 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 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 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.

         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. 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 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 an inmate at the Algoa Correctional Center in Jefferson City, Missouri. At the time relevant to this complaint, however, he was incarcerated at the Phelps County Jail in Rolla, Missouri. He brings this action pursuant to 42 U.S.C. § 1983, naming Nurse Deon Kelley and Sheriff Richard Lisenbee as defendants. (Docket No. 1 at 2-3). Both defendants are sued in their individual capacities only.

         Plaintiff alleges that on July 1, 2018, he caught a staph infection from other inmates at the Phelps County Jail, causing sores. (Docket No. 1 at 4). He was prescribed a medication called Bactrim. According to plaintiff, the medication caused side effects, including: headaches; scarring; difficulty swallowing; and discoloration, numbness, and peeling skin in his "private areas." He states that he was denied further treatment. (Docket No. 1 at 5).

         Plaintiff claims that Nurse Kelley "failed to provide proper care." He further alleges that Sheriff Lisenbe failed to "look into" his grievances and condition, and failed to "look into" his staff. (Docket No. 1 at 4).

         Plaintiff seeks $1.5 million in actual damages and $500, 000 in punitive damages. (Docket No. 1 at 6). He also wants Phelps County Jail to pay for his treatment, medical bills, and therapy. He requests a letter of apology. Finally, he seeks to ...


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