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Paul v. Smallen

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

September 16, 2019

RICO PAUL, Plaintiff,
v.
LONNIE SMALLEN, et al., Defendants.

          MEMORANDUM AND ORDER

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on the motion of plaintiff Rico Paul, an inmate at the Jefferson City Correctional Center (JCC), 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 to grant the motion, and assess an initial partial filing fee of $1.50. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court will give plaintiff the opportunity 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 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 $10.00, until the filing fee is fully paid. Id.

         At the time plaintiff filed the instant complaint and motion for leave to proceed in forma pauperis, he was incarcerated at the Potosi Correctional Center (PCC). In the motion, plaintiff avers he receives $7.50 per month, and that his brother sends him money from time to time. Plaintiff did not submit a certified inmate account statement in support of the instant motion. However, the Court notes that in a prior case plaintiff filed in this Court, he advised that PCC officials had refused to provide him with a copy of his inmate account statement. Paul v. Teddford, et al., No. 4:19-cv-1851-DDN (E.D. Mo. 2019). The Court takes judicial notice of its own records in those proceedings involving plaintiff. See Lockett v. United States, 333 Fed.Appx. 143, 144 (8th Cir. 2009) (citing Chandler v. United States, 378 F.2d 906, 909-10 (9th Cir. 1967) (district court can take judicial notice of its own records)). The Court will therefore not order plaintiff to submit a certified copy of his inmate account statement at this time, and will instead assess an initial partial filing fee based upon the information plaintiff provided in the motion. Plaintiff will be required to pay $1.50, which is twenty percent of his monthly deposit and an amount that is reasonable based upon the information before the Court. 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.”). Any claim that plaintiff is unable to pay this amount must be supported by a copy of plaintiff's institution account statement.

         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 may be granted. An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon which relief may be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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 assume the veracity of well-pleaded facts, but need not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555).

         This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429 U.S. 97, 106 (1976). This means that “if the essence of an allegation is discernible, ” the court should “construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even pro se complaints must 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). Federal courts are not required to assume facts that are not alleged, Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules 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 brings this action pursuant to 42 U.S.C. § 1983 against 10 defendants: Lonnie Smallen, Stan Payne, Unknown Grubbs, Joshua Lybarger, Dennis S. Robinson, Unknown Westcott, Richard Jennings, Steven Francis, Kimberly Price, and Kyle Renshaw. Plaintiff states he sues Smallen and Payne in their individual capacities. He does not indicate the capacity in which he sues the remaining eight defendants.

         It appears plaintiff wishes to claim he was wrongfully placed in administrative segregation or that he suffered retaliation. However, he sets forth his allegations in the form of a rambling narrative full of vague assertions and conclusory statements. For example, he writes:

I went through false imprisonment. I was released from segregation on July 26, 2018 and refer to protected custody for PC needs. I was seen August 7, 2018 and was given a 30 day review that was set for September 4, 2018 but I was a special hearing and was release to general population August 21, 2018. I was given a conduct violation 7-23-2018 but wasn't seen for the violation until 8-23-2018 which was a due process violation and served my disciplinary time for that which was over with 9-17-2018.

         Plaintiff also alleges that Smallen removed him from the “move list to be release to general population” and that Westcott “will also have whoever move me off the moving list.” Plaintiff alleges “they were retaliating because I filed sexual harassment complaints against Joshua Lybarger for months they were removing me from the moving list as I was assigned to general population.” The complaint continues in this ...


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