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Harris v. Unknown Proffer

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

October 17, 2019

JOSEPH HARRIS, Plaintiff,
v.
UNKNOWN PROFFER, et al., Defendants,

          MEMORANDUM AND ORDER

          STEPHEN R. CLARK UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the motion of plaintiff Joseph Harris for leave to commence this civil action without prepayment of the required filing fee. (Docket No. 2). Having reviewed the motion and the financial information submitted in support, the Court has determined that plaintiff lacks sufficient funds to pay the entire filing fee, and will assess an initial partial filing fee of $4.93. See 28 U.S.C. § 1915(b)(1). Additionally, for the reasons discussed below, the Court will order plaintiff to file an amended complaint on a Court form.

         28 U.S.C. § 1915(b)(1)

         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 $10.00, until the filing fee is fully paid. Id.

         In support of his motion to proceed in forma pauperis, plaintiff submitted a certified inmate account statement. (Docket No. 5). The account statement shows an average monthly deposit of $24.64. The Court will therefore assess an initial partial filing fee of $4.93, which is 20 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, malicious, or fails to state a claim upon which relief can be granted. To state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “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 upon judicial experience and common sense. Id. at 679. The court must “accept as true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating that court must accept factual allegations in complaint as true, but is not required to “accept as true any legal conclusion couched as a factual allegation”).

         When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit of a liberal construction. 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 (8thCir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint”). In addition, affording a pro se complaint the benefit of a liberal construction does not mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

         The Complaint

         Plaintiff is a pro se litigant currently incarcerated at the Southeast Correctional Center (SECC) in Charleston, Missouri. He brings this action pursuant to 42 U.S.C. § 1983. (Docket No. 1 at 1). He names the following individuals as defendants: Sergeant Unknown Proffer; Correctional Officer Unknown Brown; Warden Jason Lewis; Deputy Warden Bill Stange; Functional Unit Manager (FUM) Bruce Hanebrink; Certified Corrections Manager (CCM) Unknown Reed; CCM Matt Short; and CCM April Samples. (Docket No. 1 at 1-2). Plaintiff does not indicate the capacity in which defendants are sued.

         At some point in 2017, while in cellhouse 2A of the administrative segregation unit in SECC, plaintiff noticed an elderly inmate being “forced to go into a cell” by Sergeant Proffer, despite the elderly inmate's protests. (Docket No. 1 at 3). Plaintiff states that he told Sergeant Proffer to “leave the old man alone.” Sergeant Proffer responded by yelling: “Since you think you are tough, boot up, punk.” An hour later, Sergeant Proffer, Officer Brown, and four other guards, all dressed in riot gear, returned to plaintiff's cell and opened the tray slot. Plaintiff advised that he did not want to come out until a lieutenant arrived, because he feared being assaulted.

         According to plaintiff, Sergeant Proffer deployed pepper spray into the cell. In response, plaintiff again requested the presence of a lieutenant. Plaintiff alleges that the guards then used their battering ram to “blast” plaintiff through the tray slot, knocking him down. Afterwards, Sergeant Proffer deployed more pepper spray, and the other guards came into his cell, handcuffed plaintiff, and chained him to a bench out in the wing.

         Plaintiff states that Sergeant Proffer and Officer Brown returned later, without the other guards, to take him to cell A101, where there is no surveillance camera. Fearing for his safety, plaintiff screamed for a lieutenant or for someone to bring a video camera. Plaintiff alleges that Sergeant Proffer and Officer Brown forced him into the cell, twice “smash[ed] his face into [a] wall, ” and tore off his clothes. He further alleges that Officer Brown sprayed pepper spray into his face, and that they picked him up, while handcuffed, and slammed him face-first to the floor three times. Plaintiff also states that Sergeant Proffer got on top of plaintiff and tried twisting plaintiff's “wrist up to touch the back of his head, wrenching his shoulder to the point of dislocation.” (Docket No. 1 at 4). While this occurred, plaintiff asserts that Officer Brown told others to stay away. Thereafter, Officer Brown twice kicked plaintiff in the face.

         Sergeant Proffer and Officer Brown then put plaintiff's clothes back on, and returned him to his cell. Plaintiff states that he vomited. The following day, he was evaluated by a nurse, who documented a swollen right eye, a swollen right index finger, and “multiple contusions” to his face and body. Subsequently, plaintiff saw an ophthalmologist, who advised him that he had permanent ...


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