United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of plaintiff
Christopher Lee Hudson, an inmate at Phelps County Jail, 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 complaint.
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. He asserts that nurse Deon
Kelley at Phelps County Jail delayed proper medical treatment
for an injury he suffered to his eardrum, causing a build-up
of puss in the eardrum and a loss of hearing in his ear.
Plaintiff also alleges that Sheriff Richard Lisenbee, as well
as Lieutenant Matt Shultz at the Jail were made aware of the
delay in care at some juncture pursuant to his grievances but
that the did not see about his condition. Plaintiff brings
this action against defendants in their individual capacities
seeks compensatory and punitive damages, as well as
Court will issue process on plaintiffs delay in treatment
claim with respect to plaintiffs claims against Nurse Deon
Kelley in her individual capacity.
Eighth Amendment protects plaintiff from a confinement that
involves cruel and unusual punishment through deliberate
indifference to his serious medical needs. Deliberate
indifference may be demonstrated by prison officials who
intentionally deny or delay access to medical care.
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
prevail on a deliberate indifference claim, plaintiff must
demonstrate that he suffered from an objectively serious
medical need, and that defendants actually knew of but
deliberately disregarded such need. Dulany v.
Carnahan,132 F.3d 1234, 1239 (8th Cir. 1997). A
"serious medical need" as "one that has been
diagnosed by a physician requiring treatment, or one that is
so obvious that even a layperson would easily recognize the
necessity for a doctor's attention." Holden v.
Hirner,663 F.3d 336, 342 (8th Cir. 2011). In this case,
plaintiff alleges that Ms. Kelley knew of his injury to his
ear and that although she began to treat the injury with
antibiotics and ear drops, when the injury worsened, she did
not follow the standard of care recognized by the outside
physician. Rather, Ms. Kelley waited to properly care for
plaintiffs condition even though it noticeably ...