United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of plaintiff Dwayne
Robison, a prisoner, 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 $1.79. Additionally,
for the reasons discussed below, the Court will dismiss the
complaint, without prejudice.
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 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.
support of the instant motion, plaintiff submitted an inmate
account statement showing an average monthly deposit of
$8.96, and an average monthly balance of $7.02. The Court
will therefore assess an initial partial filing fee of $1.79,
which is twenty percent of plaintiff's average monthly
Standard on Initial Review
28 U.S.C. § 1915(e)(2), this 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. To determine whether an action states
a claim upon which relief can be granted, the Court engages
in a two-step inquiry. First, the Court determines whether
the allegations in the complaint are entitled to the
assumption of truth. Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). Allegations are not entitled to the
assumption of truth if they are merely “legal
conclusions” or “[t]hreadbare recitals of the
elements of a cause of action [that are] supported by mere
conclusory statements.” Id. at 678. Second,
the Court determines whether the complaint contains
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
is plausible on its face where “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged, ” id., and “raise[s] a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. Where the well-pleaded facts do not permit
the inference of more than the “mere possibility of
misconduct, ” the complaint has alleged, but has not
shown, that the pleader is entitled to relief.
Iqbal, 556 U.S. at 679 (citing Fed.R.Civ.P.
8(a)(2)); see also Twombly, 550 U.S. at 557 (if the
well-pleaded facts are merely consistent with wrongdoing, the
complaint stops short of the line between possibility and
plausibility). Determining whether a complaint states a
plausible claim is a context-specific task that requires the
court to draw upon experience and common sense.
Iqbal, 556 U.S. at 679.
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).
is currently an inmate at the Eastern Reception, Diagnostic
and Correctional Center, but the events described in the
complaint occurred while he was incarcerated at the
Farmington Correctional Center (“FCC”). This case
is one of 11 civil actions plaintiff has filed in this Court
pro se and in forma pauperis since May 2, 2019. He brings
this action pursuant to 42 U.S.C. § 1983 against Warden
Terri Lawson, Deputy Division Director Jeff Norman, and
Missouri Department of Corrections Director Anne Precythe.
claims he is entitled to relief because prison officials do
not always deliver all of his mail. In support, plaintiff
alleges he has not received mail in response to all of the
mail he has sent. For example, plaintiff states he is due to
be released in 10 years and has sent letters to various
companies requesting “catalogs to plan for when I get
out so I can have everything in place, ” but he did not
receive mail from all of the companies. He alleges he sends
“25-30 pieces of mail” per month. He alleges:
“Mrs. Upchurch caseworker refuse to bring me my legal
mail I have sent at least 10 legal letters out within the
last 30 days, ” “I have only received about 10
letters since I been at Farmington Correctional Center I
still have not received about 6-8 letters that I have sent
off in the last 2-3 months, ” and “I have 22
letters out I have only received one to two pieces.”
Plaintiff alleges he was placed on suicide watch for a week
and a half, and did not receive all of his mail upon release
or following occasions he was moved to different housing
units within the prison.
refers the Court to a log sheet he prepared and attached to
the complaint. The log sheet document plaintiff's
outgoing and incoming mail. For example, the log sheet shows
that in October of 2018 and March of 2019, plaintiff sent
mail to companies including Oriental Trading, Harbor Freight,
Nutrition Express, and Prism Optical, but did not receive
mail in response. The log sheet also shows that in April and
May of 2019, plaintiff sent legal mail to a “social
security lawyer, ” mailed requests for “1983
civil forms, ” and sent mail to companies requesting
catalogs, but did not receive mail in response. For some
entries, plaintiff wrote the date he received mail in
response or left the response column blank. Plaintiff writes
he is “having numerous problems with staff at
Farmington Correctional Center” and that other inmates
do as well. Nowhere in the complaint does plaintiff allege he
was subjected to content-based restrictions.
also attached to the complaint copies of the Informal
Resolution Request (“IRR”) he filed to complain
about the non-receipt of mail, along with the responses he
received to the IRR and to a Grievance and Grievance Appeal.
In sum, the responses indicate that the only time
plaintiff's mail was held was when he was on suicide
watch from October 27 to November 11 of 2018, and that the