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Nelson v. Precythe

United States District Court, E.D. Missouri, Northern Division

August 23, 2019

SALEEM M. NELSON, Plaintiff,
ANNE L. PRECYTHE, et al., Defendants.



         This matter is before the Court on the motion of plaintiff Saleem M. Nelson for leave to commence this civil action without prepayment of the required filing fee. Having reviewed the motion and the financial information submitted in support, the Court has determined that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial partial filing fee of $57.90. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, plaintiff will be directed to file an amended complaint.

         28 U.S.C. § 1915(b)(1)

         Pursuant 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 deposit 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 the Court each time the amount in the prisoner's account exceeds $10.00, until the filing fee is fully paid. Id.

         In support of his motion to proceed in forma pauperis, plaintiff submitted a certified inmate account statement. The statement shows an average monthly deposit of $289.50. The Court will therefore assess an initial partial filing fee of $57.90, which is 20 percent of plaintiff's average monthly deposit.

         Legal Standard on Initial Review

         Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “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 upon judicial experience and common sense. Id. at 679. The court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016).

         When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled facts as true. Furthermore, the Court liberally construes the allegations.

         The Complaint

         Plaintiff files his complaint pursuant to 42 U.S.C. § 1983, alleging the conditions of his confinement at Moberly Correctional Center (“MCC”) are unconstitutional because of the presence of black mold, fungus, asbestos, dust, inadequate cleaning, flooding, and vermin. He names as defendants Anne L. Precythe, Director of Missouri Department of Corrections (“MoDOC”); Dean Minor, Superintendent of MCC; Ryan Crews, Deputy Division Director of MoDOC; Dennis Allen, Assistant Warden of MCC; Theresa Thornburg, Assistant Warden of MCC; and Mark Trusty, Functional Unit Manager at MCC. As for his statement of claim, plaintiff states:

Each and every defendant listed has disregarded the health hazard of constant exposure to Mold, Fungus, Asbestos, and Dusty Ventilation Systems. Daily Coercion to attempt to clean the Mold, Fungus, Asbestos, and Dusty Ventilation Systems without proper Accouter, Chemicals, Training etc. . . . To shower in showers that is covered in Black Mold[.] To use restroom area where there's a Major Breakout and exposure to Black Mold, Fungus, Asbestos, and Extremely Dusty areas, and to live in a cell where the Ventilation blows out constant Dust, and we're forced to also reside in living areas infested with Roaches, and Mice, and in the Spring time when it constantly Rains the most the cells/living areas flood with rain water causing illness and damage to property

         Plaintiff alleges these unconstitutional conditions have existed at MCC since November 2016. He states these conditions have caused him chronic sinus issues, constant headaches, bloody mucus, nose bleeds, eye aches, shortness of breath, throat aches, and coughing. For relief, he seeks $1 million, and injunctive relief allowing him to see an outside physician with all costs paid. He also seeks to have “all Fungus, Mold, Asbestos, and Dusty Ventilation problems cured/fixed by renovation and restoration.”


         The Supreme Court has stated that the “Constitution does not mandate comfortable prisons, ” Rhodes v. Chapman, 492 U.S. 337, 349 (1981), and that only “extreme deprivations” that deny “the minimal civilized measure of life's necessities are sufficiently grave to form the basis” of a § 1983 conditions-of-confinement claim. Hudson v. McMillian, 503 U.S. 1, 9 (1992). “Although the Constitution does not mandate comfortable prisons, inmates are entitled to reasonably adequate sanitation, personal hygiene, and laundry privileges, particularly over a lengthy course of time.” Whitnack v. Douglas Cty., 16 F.3d 954, 957 (8th Cir. 1994) (internal quotation and citations omitted). “Conditions of confinement, however, constitute cruel and unusual punishment ‘only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.'” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 304-05 (1991)). “Nothing so amorphous as ‘overall conditions' can rise to the level of cruel and unusual punishment when no specific deprivation of a ...

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