United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of pro se
plaintiff Dwayne Robison for leave to commence this action
without prepayment of the required filing fee. Having
reviewed the motion and the financial information submitted
in support, the Court will grant the motion, and assess an
initial partial filing fee of $3.33. See 28 U.S.C.
§ 1915(b)(1). Furthermore, after reviewing the
complaint, the Court will dismiss this case without
prejudice. See 28 U.S.C. § 1915(e)(2).
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 instant motion, plaintiff submitted an inmate
account statement showing average monthly deposits of $16.67.
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 $3.33, 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.
1915(e)(2) also allows this Court to dismiss a duplicative
complaint that raises issues that are directly related to
issues in another pending action brought by the same party.
Aziz v. Burrows, 976 F.2d 1158 (8th Cir. 1992). An
action is duplicative if the parties, issues, and available
relief do not significantly differ between two actions.
I.A. Durbin, Inc. v. Jefferson Nat. Bank, 793 F.2d
1541, 1551 (11th Cir.1986).
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
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”). He brings
this action pursuant to 42 U.S.C. § 1983 against Kay
McIntyre, Karen Salesmen, and Elizabeth Atterberry. Plaintiff
sues McIntyre in both her official and individual capacities,
Salesmen in her official capacity only, and he does not
specify capacity for his claims against Atterberry.
complaint is difficult to read and understand. From what the
Court can discern, plaintiff has two main complaints: (1)
that he was not receiving the mental health treatment and
medications that he wanted and needed at FCC; and (2) that he
was assigned and restricted to a single-man cell when he
wanted to be in a double man cell. Plaintiff alleges that the
single-man cell restriction is actually discrimination and
punishment for being transgender.
defendant Karen Salesmen, a Qualified Mental Health
Professional (“QMHP”) at FCC, plaintiff asserts
that she responded to many of his grievance filings with
false information, that she would not let him change mental
health counselors at FCC, and that she made discriminatory
remarks about him to other FCC staff members. Plaintiff
complains that defendant Elizabeth Atterberry - who plaintiff
describes as the Regional Director of Mental Health - allowed
the FCC mental health providers to refuse him medication. As
for defendant Kay McIntyre, another mental health
professional at FCC, plaintiff alleges that she made
discriminatory remarks about him because she is
“hateful” towards people who are transgender and
homosexual. ECF No. 1 at 5. Plaintiff asserts that McIntyre
told him that he did not have mental health problems, she did
not provide him with proper mental health treatment, and she
took him off his mental health medication. In addition,
plaintiff claims that McIntyre uses “suicide cells for
punishment.” Id. at 7.
attached to the complaint copies of the Informal Resolution
Requests (“IRR”), Grievances, Grievance Appeals,
and institutional responses regarding his two claims. ECF No.
1-3. In Complaint No. FCC 19-506, plaintiff complained about
being placed on “cell alone status” while in
administrative segregation, and he requested to have a cell
mate. Defendant Salesmen responded to plaintiff's IRR and
denied it as a duplicative complaint. ECF No. 1-3 at 1-2.
Subsequently, Lisa Sanderson (FCC Chief of Mental Health
Services and not a defendant in this suit) responded to
plaintiff's grievance on this claim. Sanderson reviewed
plaintiff's past housing assignments, past complaints he
made to mental health providers about problems with cell
mates, and past complaints about staff members not keeping
him safe from other inmates. Sanderson noted that in
consideration of plaintiff's “history of mental
health issues, suicide attempts, self reported sexual
activities, and safety and security concerns, ” the FCC
staff decided it was in plaintiff's “best interest
and for [his] own safety and security” that he remain
in a single-man cell. Id. at 3. Sanderson denied
plaintiff's grievance, finding that the ...