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Like v. Dowdy

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

September 30, 2019

RONALD LIKE, Plaintiff,
v.
SCOTT DOWDY, et al., Defendants.

          MEMORANDUM AND ORDER

          JEAN C. HAMILTON UNITED STATES DISTRICT JUDGE.

         Pro se plaintiff Ronald Like filed a civil complaint brought under 42 U.S.C. § 1983, which was transferred to this Court from the U.S. District Court for the Western District of Missouri. When plaintiff filed his complaint in that Court, he also filed an “Affidavit in Support of Request to Proceed In Forma Pauperis - Prisoner Cases.” ECF No. 2. The Court will construe the filing as a motion for leave to proceed in forma pauperis. Having reviewed the affidavit and the financial information submitted in support, the Court will grant the motion and assess an initial partial filing fee of $15.85. 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.

         Initial Partial Filing Fee

         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 Court each time the amount in the prisoner's account exceeds $10, until the filing fee is fully paid. Id.

         In support of the request to proceed in forma pauperis, plaintiff submitted an inmate account statement showing average monthly deposits of $79.24. See ECF No. 3. The Court finds that plaintiff has insufficient funds in his prison account to pay the entire fee and will therefore assess an initial partial filing fee of $15.85, which is twenty 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, is malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. To state a claim for relief, a complaint must plead more than “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Id. at 679. “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 on its judicial experience and common sense. Id. at 679.

         When reviewing a pro se complaint under 28 U.S.C. § 1915, the Court accepts the well-plead facts as true, White v. Clark, 750 F.2d 721, 722 (8th Cir. 1984), and liberally construes the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007); 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 (8th Cir. 2004) (refusing to supply additional facts or to construct a legal theory for the pro se plaintiff that assumed facts that had not been pleaded).

         The Complaint

         Plaintiff, a federal pretrial detainee at Phelps County Jail, brings this action under 42 U.S.C. § 1983, alleging violations of his civil rights against seven defendants employed at the Jail: (1) Sergeant Scott Dowdy; (2) Sergeant Steve Lorts; (3) Corporal Ariel Hobb; (4) Corporal Timothy Alexander; (5) Lieutenant Matthew Schults; (6) Captain Rick Hope; and (7) Phelps County Jail Administrative Staff. Plaintiff brings his claims against the first six individual defendants in their individual capacity only.

         Plaintiff's complaint is based on two main claims or issues: (1) an incident of alleged excessive force by Jail staff and (2) due process violations related to the handling of Jail grievances.[1] First, plaintiff alleges that on April 22, 2019, while incarcerated at the Phelps County Jail, he was attacked and tased by Jail staff. On that day, plaintiff was experiencing chest pain so he got the attention of Jail employee defendant Alexander from his pod window. When Alexander opened the pod door, Alexander yelled at plaintiff. Plaintiff states that he responded by telling “him not to speak to me in that manner.” ECF No. 1 at 7. Alexander directed plaintiff back to his cell and called for backup. Plaintiff alleges that he was then pushed across his cell and slammed to the floor, causing injuries to his head. Plaintiff claims that defendant Dowdy pinned him to the floor with assistance from defendants Alexander and Hobb. Then, defendant Lorts tased him. As a result of this incident, plaintiff claims that he has suffered swelling of the head, tenderness over his ribs and back, migraine headaches, dizziness, and psychological trauma.

         Plaintiff also details four complaints involving grievance filings that he alleges show a violation of his due process rights and a violation of 28 C.F.R. § 40.7 (Minimum Standards for Inmate Grievance Procedures). Plaintiff filed two grievances about the alleged excessive force incident described above. ECF No. 1-1 at 3-4. The response to the first grievance (by a Jail employee not named as a defendant here) was “ok.” Id. at 3. The response to the second grievance informed plaintiff that the grievance would be forwarded to defendant Lieutenant Schults. Id. at 4. Plaintiff complains that he has had no response from Schults. The second grievance issue is a complaint by plaintiff that he could not contact his attorney by phone because he was on disciplinary lockdown. ECF No. 1-1 at 2. In response, defendant Lorts directed plaintiff to contact his attorney via U.S. mail. The third grievance issue raised by plaintiff is that he requested a formal hearing regarding a filed grievance and has not received one. Finally, plaintiff complained by grievance filing of an inability to purchase envelopes due to a block on his canteen account. The response to the grievance (by a Jail employee not named as a defendant here) directs plaintiff to ask one of the shifts to let him “out to order paper.” ECF No. 1-1 at 1.

         For relief, plaintiff seeks compensatory ...


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