United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the motion of plaintiff James
Anthony Wilkins, Jr. for leave to commence this civil action
without prepayment of the required filing fee. (Docket No.
2). 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 $1.00. See
28 U.S.C. § 1915(b)(1). Additionally, for the reasons
discussed below, plaintiff will be directed to file an
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 the Court each time the
amount in the prisoner's account exceeds $10.00, until
the filing fee is fully paid. Id.
has not submitted a copy of his inmate account statement.
However, his motion for leave to proceed in forma pauperis
states that he receives some income from family and friends.
As such, 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 that amount,
he must submit a copy of his inmate account statement in
support of his claim.
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,
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). See also
Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73
(8th Cir. 2016) (stating that court must accept
factual allegations in complaint as true, but is not required
to “accept as true any legal conclusion couched as a
reviewing a pro se complaint under § 1915(e)(2), the
Court must give it the benefit of a liberal construction.
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 (8thCir.
2004) (stating that federal courts are not required to
“assume facts that are not alleged, just because an
additional factual allegation would have formed a stronger
complaint”). In addition, affording a pro se complaint
the benefit of a liberal construction does not mean that
procedural rules in ordinary civil litigation must be
interpreted so as to excuse mistakes by those who proceed
without counsel. See McNeil v. United States, 508
U.S. 106, 113 (1993).
states that he is a convicted and sentenced federal prisoner,
currently being held in the Ste. Genevieve Detention Center
in Ste. Genevieve, Missouri. (Docket No. 1 at 2). He brings
this pro se civil action pursuant to 42 U.S.C. § 1983.
He names Cape County Police Department officer Joseph Hann
and U.S. Marshal Clark Meadows as defendants. (Docket No. 1
at 2-3). Plaintiff does not indicate the capacity in which
defendants are sued.
asserts that on February 28, 2015, plaintiff was at the Town
House Inn in Cape Girardeau, Missouri. (Docket No. 1 at 3).
During an apparent encounter with law enforcement, plaintiff
was shot in the chest by Officer Hann. Plaintiff alleges
that Deputy Meadows also fired shots at him. In doing so,
plaintiff states they both failed to “perform their
[duties] in [a professional] manner.” He also accuses
both defendants of “defamation of character” and
slander to his name.
states that he suffered a gunshot wound to his left chest
cavity, which caused multiple rib fractures and a contusion
of his left lung. (Docket No. 1 at 4). He asserts that he
required surgery and the placement of a chest tube, but that
the bullet was not removed.
seeks $40 million in damages due to his injury. (Docket No. 1
at 5). He claims that he is now unable to provide for his
family, suffers “constant pain and slight
immobility” in his ...