United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of pro se
plaintiff Anthony Russell Wilson, II for leave to commence
this action without prepayment of the required filing fee.
Plaintiff was a pretrial detainee when he filed his complaint
on May 6, 2019. However, plaintiff filed a change of address
notice with the Court on July 30, 2019, indicating he has
been released from prison. Because plaintiff was released
from confinement shortly after filing the instant action, the
Court will grant his request to proceed in forma
pauperis and will not assess an initial partial filing
fee at this time. Furthermore, for the reasons discussed
below, the Court will direct plaintiff to file an amended
complaint on a court-provided form.
of Filing Fee
28 U.S.C. § 1915(b)(1) of the Prison Litigation Reform
Act (“PLRA”), when a prisoner brings a civil
action in forma pauperis, the prisoner must pay the
full amount of the filing fee. This is usually done in the
form of an initial partial payment and then installment
payments over time. However, a non-prisoner plaintiff can
litigate without payment of any fees if he qualifies under
the general in forma pauperis provision of 28 U.S.C.
circuit authority is split on the question of whether the
PLRA prison litigation provisions of § 1915 continue to
govern if and after the prisoner is released pendente
lite (that is, during the litigation). The Fifth,
Seventh and District of Columbia Circuits have held that the
full payment requirement is triggered upon the filing of the
(as applicable) complaint or notice of appeal. . . . The
Second, Fourth, Sixth and Tenth Circuits have concluded to
the contrary, that the requirements of the PLRA do not
continue to apply after the plaintiff is released.”
Putzer v. Attal, No. 2:13-cv-00165-APG-CWH, 2013 WL
4519351, at *1 (D. Nev. Aug. 23, 2013) (internal citations
Eighth Circuit has not ruled on this issue. However, in this
case, plaintiff was released shortly after filing this case
and before the Court ruled his motion to proceed in forma
pauperis. No. initial partial payment was assessed while
plaintiff was detained. Therefore, the Court will consider
plaintiff as he currently stands at the time of the review of
his motion - as a non-prisoner plaintiff under 28 U.S.C.
§ 1915(a)(1). Based on the financial information
submitted, the Court finds that plaintiff does not have
sufficient funds to pay the filing fee and will grant his
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
was a federal pretrial detainee when he brought this action
under 42 U.S.C. § 1983. Plaintiff names six defendants
associated with the Phelps County Jail, in both their
individual and official capacities: (1) Phelps County Jail
Administration; (2) Sergeant Unknown Lorts; (3) Sergeant
Unknown Dowdi; (4) Correctional Officer Unknown Jones; (5)
Correctional Officer Unknown Reed; and (6) Lieutenant Unknown
Statement of Claim section VI of the complaint, plaintiff
summarizes his case as follows: “While in Phelps County
Jail in C-Pod I was segregated and suffered atypical and
significant hardship. See attached: 3 pages of Statement of
Claim and 24 pages of evidence (grievances); 27 pages in
total.” Doc. 1 at 5. Twenty-four (24) pages of
grievance-filing exhibits were attached to the complaint.
See Doc. 1-1. However, the three-page
‘Statement of Claim' was included and docketed with
the separately filed Motion for Appointment of Counsel.
See Doc. 4 at 2-4. Because plaintiff is proceeding
pro se, the Court will liberally construe the
‘Statement of Claim,' attached to the motion for
counsel, as part of the complaint.
alleges that on or around May 3, 2018, Sergeant Lorts found
plaintiff guilty of a disciplinary violation without
“any fair evaluation of the facts, ” based on
accusations of Correctional Officer Jones. Doc. 4 at 2. After
the finding, plaintiff was locked in a suicide cell
“with no bedding, no property (other than the clothing
[he] was wearing), no hygiene, no toilet, no sink, no shower,
no food and 24 hour lighting.” Id. Sergeant
Dowdi, Sergeant Lorts, and Correctional Officer Reed were
present when plaintiff was declared guilty by Lorts and
locked in the cell. Three days later, Lorts removed plaintiff
from the cell to be questioned by Jones. Plaintiff made Jones
aware of the conditions of his confinement. Plaintiff was put
back in the suicide cell for two more days. On the fifth day,
plaintiff was taken from the cell to shower and moved to a
regular cell. Plaintiff alleges that Lieutenant Shultz, the
supervisor of the other individual defendants, was
“made aware” of the way plaintiff was treated and
he “condones the shocking actions and policies of [the]
facility.” Id. at 3.
also asserts that while confined at Phelps County Jail, he
was “treated differently than the other inmates and
taunted and threatened by Sergeant Dowdi [and] Sergeant
Lorts.” Id. For example, plaintiff claims he
was denied personal mail; his legal mail was opened outside
his presence; his visitors were only allowed to stay 10
minutes; on one occasion his attorney was not allowed to see
him; he was refused recreation, medical and psychiatric
treatment; he was denied access to the law library; and
commissary items were taken from him without explanation.
Plaintiff believes his five-day suicide cell placement was in
retaliation for the many grievances he had previously filed
about the conditions at Phelps County Jail. ...