United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
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.
Partial Filing Fee
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.
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.
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, 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.
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
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.
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. 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.
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.
relief, plaintiff seeks compensatory ...