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Herrington v. Larkins

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

April 30, 2019

STEPHON HERRINGTON, Plaintiff,
v.
STEVE LARKINS, et al., Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon the motion of plaintiff (registration no. 1264381), an inmate at Missouri Eastern Correctional Center ("MECC"), for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that plaintiff does not have 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). Furthermore, based upon a review of the complaint, the Court finds that the complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

         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, 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.

         28 U.S.C. § 1915(e)

         Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. An action is frivolous if "it lacks an arguable basis in either law or in fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious when it is undertaken for the purpose of harassing litigants and not for the purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F.Supp. 458, 461-63 (E.D. N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987).

         To determine whether an action fails to state a claim upon which relief can be granted, the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950-51 (2009). These include "legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements." Id. at 1949. Second, the Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51. This is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. The plaintiff is required to plead facts that show more than the "mere possibility of misconduct." Id. The Court must review the factual allegations in the complaint "to determine if they plausibly suggest an entitlement to relief." Id. at 1951. When faced with alternative explanations for the alleged misconduct, the Court may exercise its judgment in determining whether plaintiffs proffered conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.

         The Complaint

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights during his stay at Eastern Reception Diagnostic and Correctional Center ("ERDCC"). Plaintiff names as defendants in this action Steve Larkins (Warden); Stanley Payne (Assistant Warden) and Chris Rosko (Regional Medical Director). He brings this action against defendants in their individual and official capacities.

         Plaintiff asserts that he had an asthma attack at ERDCC in May of 2018 and his cellmate pushed the button in his cell to attempt to get a correctional officer's attention. He states that it took around two hours to get a response. Plaintiff does not indicate what result the two-hour response time had on his medical condition at that time. Plaintiff, however, makes a conclusory claim that at ERDCC, "most of the time CO's will ignore the stress call button or take hours to respond to the stress button complaint which if it's a life threatening problem could leave an inmate hurt, dying or in a painful state." Plaintiff asserts that he is bringing a "Monell" claim against defendants in this action for generally not attending to inmates' medical needs at ERDCC. Plaintiff states that he is also seeking damages for "civil conspiracy" for "conspiring to deprive plaintiff access to medical treatment during plaintiffs sentence. However, plaintiff has not indicated exactly what type of medical treatment he has sought or which defendant he has asked for medical treatment and been specifically denied such treatment. Plaintiff also does not specify who he believes has engaged in such a conspiracy at ERDCC.

         Plaintiff further alleges that he is seeking damages for breach of "duty/negligence" and "medical neglect" under Missouri state law. Last, plaintiff alleges that he is seeking damages for intentional infliction of emotional distress.

         Plaintiff is seeking compensatory and punitive damages. He is no longer incarcerated at ERDCC; however, in plaintiffs prayer for relief, he seeks to enjoin defendants from ...


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