United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of pro se
plaintiff Donnie Cook, an inmate at Eastern Reception
Diagnostic and Correctional Center (“ERDCC”), for
leave to commence this action without payment of the required
filing fee. Having reviewed the motion and the financial
information submitted in support, the Court has determined to
grant the motion, and assess an initial partial filing fee of
$1.70. See 28 U.S.C. § 1915(b)(1).
Additionally, for the reasons discussed below, 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.
Partial Filing Fee
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.
support of the instant motion, plaintiff submitted an inmate
account statement showing average monthly deposits of $8.50.
The Court finds that plaintiff has insufficient funds in his
prison account to pay the entire fee and will therefore
assess an initial partial filing fee of $1.70, twenty percent
of plaintiff's average monthly deposit.
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, is 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. To state a claim
for relief, a complaint must plead more than “legal
conclusions” and “[t]hreadbare recitals of the
elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A plaintiff must demonstrate a
plausible claim for relief, which is more than a “mere
possibility of misconduct.” Id. at 679.
“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 on its judicial experience and common sense.
Id. at 679.
reviewing a pro se complaint under 28 U.S.C. §
1915, the Court accepts the well-pled facts as true,
White v. Clark, 750 F.2d 721, 722 (8th Cir. 1984),
and liberally construes the complaint. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); 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) (refusing to supply
additional facts or to construct a legal theory for the
pro se plaintiff that assumed facts that had not
brings this action pursuant to 42 U.S.C. § 1983 against
two defendants, both of whom are Missouri Department of
Corrections (“MDOC”) employees: Danny Adams
(Disciplinary hearing officer at ERDCC) and Unknown Bingham
(Assistant Warden at ERDCC). Plaintiff sues both defendants
in their official and individual capacities.
to the allegations of plaintiff's complaint, at some
unspecified time in the past, plaintiff and his cellmate
Jerald Martin were issued a major conduct violation for
dangerous contraband after a homemade knife was found
“wrapped around the railing of [plaintiff's]
cellmate's bunk” during a cell search. ECF No. 1 at
¶ 5. Plaintiff requested that defendant Adams, as the
disciplinary hearing officer, review video camera footage to
prove plaintiff's assertion that another prisoner had
planted the knife in his cell. Adams denied plaintiff's
request to review video footage and found plaintiff guilty of
the conduct violation. Id. at ¶¶ 8-9. As a
result, plaintiff was punished with thirty (30) days of
disciplinary segregation; indefinite assignment to
administrative segregation; one (1) year of no-contact
visits; one (1) year premium pay restriction; and the
violation was referred for prosecution. Id. at
¶ 9. Defendant Bingham approved Adams' denial of
plaintiff's request to review the video camera footage
and Adams' decision on plaintiff's punishment.
Id. at ¶ 10. Plaintiff complains that his
cellmate Martin's conduct violation was eventually
dismissed and Martin was released from administrative
asserts that as a result of the conduct violation, he is
suffering “atypical and significant conditions, ”
including: 24-hour lock-in periods; no work or rehabilitation
programs; indefinite assignment to administrative segregation
with no meaningful review of when he can be released; lack of
access to recreational periods during inclement weather due
to a lack of winter clothing; and only one hour of
recreational time three times a week that is confined to an
outdoor cage approximately eight by four feet in size and
shared by another prisoner. ECF No. 1 at ¶ 12. As a
result of inadequate recreation time, plaintiff alleges that
his muscles have atrophied and his chronic knee problem is
worse. Plaintiff also claims that “[d]ue to the sensory
deprivation in segregation, [he] is experiencing
psychological problems of hallucinating, sleep deprivation,
anxiety attacks, and extreme weight loss.” Id.
seeks declaratory relief, injunctive relief, and damages. He
would like a declaration that his constitutional rights have
been violated; a preliminary and permanent injunction
dismissing and expunging the conduct violation from his
record; $100 per day from each defendant for ...