United States District Court, E.D. Missouri, Eastern Division
TONY M. DAVIS, SR., Plaintiff,
TYLER LEWIS, Defendant.
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of plaintiff Tony
M. Davis, Sr., an inmate at Jefferson City Correctional
Center (“JCCC”), for leave to commence this
action without payment of the required filing fee. For the
reasons stated below, the Court finds that the 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, after
reviewing the complaint, the Court will partially dismiss the
complaint and will order the Clerk to issue process or cause
process to be issued on the non-frivolous portions of the
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 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.
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.
U.S.C. § 1915(e)
to 28 U.S.C. § 1915(e)(2)(B), the Court must 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 from a defendant who is
immune from such relief. An action is frivolous if it lacks
an arguable basis in either law or fact. Neitzke v.
Williams, 490 U.S. 319, 328 (1989); Denton v.
Hernandez, 504 U.S. 25, 31 (1992). An action is
malicious if it is undertaken for the purpose of harassing
the named defendants 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). A complaint fails to state a claim 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).
brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights during his incarceration at
Warren County Jail. He asserts that a guard at the Jail,
Tyler Lewis, used excessive force on his right arm when he
pushed him back into his assigned cell. Plaintiff states that
this caused an injury to his shoulder, resulting in
significant inflammation to his muscles and tendons, and
necessitating medical attention.
seeks compensatory and punitive damages, as well as
Court will issue process on plaintiff's excessive force
claim against defendant Lewis in his individual capacity.
However, plaintiff's claim against defendant Lewis in his
official capacity will be dismissed. Naming a government
official in his or her official capacity is the equivalent of
naming the government entity that employs the official.
Will v. Michigan Dep't of State Police, 491 U.S.
58, 71 (1989). To state a claim against a municipality or a
government official in his or her official capacity,
plaintiff must allege that a policy or custom of the
government entity is responsible for the alleged
constitutional violation. Monell v. Dep't of Social
Services, 436 U.S. 658, 690-91 (1978). The instant
complaint does not contain any allegations that a policy or
custom of a government entity was responsible for the alleged
violations of plaintiff's constitutional rights. As a
result, the complaint fails to state a claim upon which
relief can be granted with respect to plaintiff's claim
against defendant Lewis in his official capacity.
plaintiff's request for counsel will be denied at this
time. The Court notes plaintiff has demonstrated, at this
point, that he can adequately present his claims to the
Court. Additionally, neither the factual nor the legal issues
in this case are complex. Therefore, the Court will deny
plaintiff's request for counsel at this time.
IT IS HEREBY ORDERED that plaintiff's
motion to proceed in forma ...