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Robison v. McIntyre

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

October 9, 2019

DWAYNE ROBISON, Plaintiff,
v.
KAY MCINTYRE, et al., Defendants.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.

         This 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).

         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 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.

         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.

         Section 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).

         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 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.

         Plaintiff's 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.

         As to 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.

         Plaintiff 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 ...


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