United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of plaintiff
(registration no. 506654), an inmate at Potosi Correctional
Center (“PCC”), 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 enough funds to pay the entire filing fee and will
assess an initial partial filing fee of $30.82. 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 submitted an affidavit and a certified copy of his prison
account statement for the six-month period immediately
preceding the submission of his complaint. A review of
plaintiff's account indicates an average monthly deposit
of $154.08. Accordingly, the Court will assess an initial
partial filing fee of $30.82.
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 Aenough facts to state a claim to relief
that is plausible on its face. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
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
plaintiff's proffered conclusion is the most plausible or
whether it is more likely that no misconduct occurred.
Id. at 1950, 1951-52.
brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights. Plaintiff names the following
individuals as defendants in this action: William McKinney
(Doctor, Corizon, Inc. (“Corizon”)); Diana Larkin
(Nurse, Corizon); Connie James (Nurse, Corizon); Loraine
Coleman (Nurse, Corizon); Steve Vossick (Nurse, Corizon);
Sarah Skaggs (Nurse, Corizon); Cindy Griffith (Warden, PCC);
Ernest Jackson (Director Dental Service, Missouri Department
of Corrections (“MDOC”)); Jewel Cofield, Director
of Operations, MDOC); and T. Bredeman, Medical Director,
MDOC). Plaintiff brings this action against the defendants in
both their individual and official capacities.
Tooth Pain and Resulting Head Injury
asserts that he was incarcerated in Temporary Administrative
Segregation Confinement (“TASC”) at PCC in May of
2017. He asserts that on May 20, 2017, he began
suffering tooth pain and filed a medical service request
(“MSR”), requesting that he be seen by a dentist.
Plaintiff asserts that he was escorted to the Administrative
Segregation “sick-call room” and seen by Nurse
Barton, who acknowledged that he needed to be
seen by a dentist. Plaintiff asserts that he was told PCC did
not currently have a dentist, but she gave him some
“I-Prin”[sic] and sent him back to his cell.
claims that he went two more weeks without dental attention,
and the pain continued to increase. On or about June 3, 2017,
he filed a second MSR requesting that he be seen by medical
staff. Plaintiff does not state whom he saw, but he claims
that an unnamed person told him PCC did not have a dentist
and they did not know when one would be hired.
states that on or about June 20, 2017, the pain had increased
severely, he was having trouble sleeping, eating, and hearing
out of one ear, and he believed he had developed an infection
in his tooth, or an abscess. Thus, he declared a medical
emergency once again, asking to see a
“dentist/doctor.” Plaintiff claims he was seen by
Nurse Skaggs at this time, who told him there was no dentist
available. Plaintiff alleges that when he asked Nurse Skaggs
to provide him with antibiotics to treat the abscess, Nurse
Skaggs said that only a doctor could provide the antibiotics,
but she failed to schedule plaintiff with a doctor at that
8, 2017, plaintiff asserts that he once again declared a
medical emergency due to loss of sleep, severe pain, and loss
of appetite. Plaintiff claims he was told by unnamed nursing
staff that he was scheduled to see a dentist on July 12,
2017; however, when that date came, he was not taken to see a
plaintiff does not provide a date, he claims that he told
Warden Cindy Griffith about his delay in receiving dental
care and the lack of a dentist on staff at PCC. He claims he
told Ms. Griffith about these issues prior to filing an
Institutional Resolution Request (“IRR”) and ...