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Wilkins v. Hann

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

September 3, 2019

JAMES ANTHONY WILKINS, JR., Plaintiff,
v.
JOSEPH HANN, et al., Defendants.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.

         This 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 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 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.

         Plaintiff 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.

         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). 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 factual allegation”).

         When 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).

         The Complaint

         Plaintiff 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.

         Plaintiff 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.[1] 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.

         Plaintiff 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.

         Plaintiff 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 ...


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