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Wilson v. Precythe

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

October 18, 2019

SHERRON WILSON, Plaintiff,
v.
ANNE PRECYTHE, Defendant.

          MEMORANDUM AND ORDER

          ABBIE CRITES-LEONI UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court upon review of a complaint and other documents filed by plaintiff Sherron Wilson, an inmate at the Potosi Correctional Center (PCC). For the reasons explained below, the Court will allow plaintiff to proceed in forma pauperis in this action, and will assess an initial partial filing fee of $171.48. Additionally, the Court will give plaintiff the opportunity to file an amended complaint.

         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 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 the case at bar, plaintiff filed a motion to appoint counsel in which he averred he was impoverished and unable to pay a reasonable attorney fee. He also filed a document explaining that he did not know how to pay the filing fee and asking the Court to debit his account, which the Court cannot do. Finally, plaintiff submitted a certified inmate account statement showing an average monthly deposit of $27.01 and an average monthly balance of $857.42. The Court will construe plaintiff's filings as a request for leave to proceed in forma pauperis, and will allow him to do so. The Court will also assess an initial partial filing fee of $171.48, which is twenty percent of plaintiff's average monthly balance.

         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 may be granted. An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon which relief may be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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 assume the veracity of well-pleaded facts, but need not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing Twombly, 550 U.S. at 555).

         This 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).

         The Complaint

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 against Anne Precythe, the Director of the Missouri Department of Corrections. He sues Precythe in her individual and official capacity.

         Plaintiff writes: “I keep getting physically and verbally sexually harassed in every level and department of correction I go to.” He alleges that every cellmate physically and/or verbally abuses him, sexually harasses him, or does all of those things. He alleges he was raped on “June the 5th by an inmate that the staff let rape me in front of Housing Unit number four, ” and that because of this, plaintiff had to be transferred. Plaintiff alleges there is “a guy on the streets” who pays people in institutions to treat him this way. Plaintiff identifies two gangs, and he names prior cellmates who have subjected him to various forms of abuse. He alleges “[t]hey pay the inmates by letting them have sex with the nurses, ” and he identifies the people involved. He states he did not receive medical treatment after he was raped. He does not clearly identify the relief he seeks from this Court, but he does state he wants to be housed in a single cell or placed in protective custody.

         Discussion

         Plaintiff has named Precythe as the defendant in this matter. However, plaintiff does not allege she was directly involved in any incident that harmed him or in anything that could be said to have given rise to such an incident, or that she was aware of any such incident. Instead, plaintiff's allegations against Precythe sound in respondeat superior. “Liability under § 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (to be cognizable under § 1983, a claim must allege that the defendant was personally involved in or directly responsible for the incidents that deprived the plaintiff of his constitutional rights). Claims sounding in respondeat superior are not cognizable under § 1983. Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995). Plaintiff also fails to specify ...


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