United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of plaintiff
(registration no. 1081978), an inmate at Eastern Reception,
Diagnostic and Correctional Center ("ERDCC"), for
leave to commence this action without payment of the required
filing fee. For the reasons stated below, the Court finds
that the plaintiff does not have sufficient funds to pay the
entire filing fee and will assess an initial partial filing
fee of $10.66. See 28 U.S.C. § 1915(b)(1).
Furthermore, after reviewing the complaint and the
supplemental complaints, the Court will order plaintiff to
submit a second amended complaint on a court-provided form in
compliance with the instructions set forth below. Plaintiffs
failure to do so will result in a dismissal of this action,
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.
has submitted an affidavit and a certified copy of his prison
account statement for the six-month period immediately
preceding the submission of his complaint. A review of
plaintiffs account indicates an average monthly deposit of
$53.33. Accordingly, the Court will assess an initial partial
filing fee of $10.66.
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,
malicious, or fails to state a claim upon which relief can be
granted. To state a claim for relief under § 1983, 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, inter alia, draw
upon judicial experience and common sense. Id. at
complaints are to be liberally construed. Estelle v.
Gamble, 429 U.S. 97, 106 (1976). However, they still
must allege sufficient facts to support the claims alleged.
Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir.
2004); see also Martin v. Aubuchon, 623 F.2d 1282,
1286 (8th Cir. 1980) (even pro se complaints are required to
allege facts which, if true, state a claim for relief as a
matter of law). Federal courts are not required to
"assume facts that are not alleged, just because an
additional factual allegation would have formed a stronger
complaint." Stone, 364 F.3d at 914-15. In
addition, giving 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.
U.S., 508 U.S. 106, 113(1993).
Complaint and Motions to Compel/Supplemental
is an inmate at the Eastern, Reception Diagnostic and
Correctional Center. He brings this action pursuant to 42
U.S.C. § 1983 against the following defendants, named in
his complaint: Thomas Gullett (Correctional Officer); Dalton
LaRue (Correctional Officer); Stan Payne (Warden); Cindy
Griffith; Jeff Norman; Unknown Pacheco; Unknown Weir
(Correctional Officer); Eric Friel (Correctional Officer);
John Doe; and Jane Doe. Plaintiff brings this action against
defendants in their official and individual
filed a fifty-one-page (51) complaint on September 12, 2019.
At the time of filing his complaint, he filed a motion to
proceed in forma pauperis, as well as a motion for
appointment of counsel. Since the time of filing his
complaint, plaintiff has filed five motions to compel [Doc.
#6, #8, #10, #11 and #13], a motion for preliminary
injunction [Doc. #9] and a motion to issue summons [Doc.
complaint, plaintiff asserts several different claims against
the named defendants in this action. Plaintiffs first main
cause of action relates to an altercation that purportedly
occurred at ERDCC on September 5, 2018.
claims that he was having trouble with his vision in his
right eye, so he was admitted to the T.C.U. at ERDCC.
Plaintiff believes he should have stayed in T.C.U. that day,
but "white shirts" arranged to have him transferred
back to his house, and then in the afternoon, Correctional
Officers John Doe and Jane Doe came to get him out of his
cell and started yelling at him about a letter they believed
he had written. Plaintiff does not indicate what the
purported letter pertained to, only that he told the officers
that he had not written the letter. Plaintiff states that
when the female officer realized that he "either knew
something and wasn't talking or [he] really was telling
the truth she gave a verbal directive to both of the officers
to 'f-ck him up.'"
claims he was forced and yanked out of the room he was
sitting in and pushed into the Administrative Segregation
Unit by unnamed officers. Once in the Administrative
Segregation Unit, plaintiff states that he told the officers
that he "was not taking a cell." Plaintiff states
that when they tried to assign him a cell he "checked
out immediately." He was then assigned to sit on a bench
for two hours, after which time he was taken to a new cell.
Plaintiff then checked out of that cell (refused it), after
which time he was sat on a bench for another two hours. He
claims that at that time, he was taken to a double-man cell
that was unoccupied.
the cell, plaintiff states he was told to strip out. He
claims that Correctional Officer Pacheco and Correctional
Officer Weir were the assigned officers at the time in the
room, although Pacheco was doing the talking. Plaintiff
claims he complained to Pacheco that it was impossible to
strip out with his handcuffs on and behind his back, but he
was told that the handcuffs were not coming off. Plaintiff
complains that this was in violation of Missouri Department
of Corrections Policy and Procedure as he understood the
states that he was told for a third time to strip out with
his handcuffs on, and he told Pancheco he could not follow
his instructions. Plaintiff claims that he was told by
Pancheco that he would be given one last chance to strip out.
When he didn't respond, Pacheco called a 10/10 on his
radio and Correctional Officer Gullett responded to the cell.
Gullett ordered plaintiff to strip out and plaintiff states
that he asked Gullett "how?" Plaintiff states that
Gullett began to imitate a monkey at this time, presumably
making fun of plaintiff. Plaintiff alleges that Gullett again
gave plaintiff the directive to strip out, and plaintiff
again stated that he was unable to do so with his hands
cuffed behind his back. Gullett told plaintiff to place his
nose on the wall. Gullett then pulled plaintiffs pants and
boxers down himself. Plaintiff states that he turned half
around and sidestepped and told Gullett that he was going to
report him under PREA. Gullett responded that it wasn't a
proper PREA complaint. Plaintiff asserts that it was at this
point that Gullett "forcefully slammed [his] face into
the wall and picked [him] up and slammed [his] face
1st into the concrete floor knocking [him]
unconscious instantly." Plaintiff asserts that when he
came to consciousness he was bleeding from the head and nose.
claims that his injuries to his face were significant as a
result of the altercation. He asserts that he suffered a
broken nose, a fracture to the right side of his nose, a
tri-fracture directly under his right eye, several fractures
to his cheekbone and a fracture to the right side of his
face. He asserts that he had to undergo surgery to correct
alleges mat while he was recovering from surgery, on
September 17, 2018, Eric Friel came to his cell door and
stated, "This is what you get for disrespecting Captain
Larue and our staff. . .for disrespecting the White
Bluuds" Plaintiff believes this statement was in
reference to him writing up Correctional Officer Larue for
making threats against plaintiff. Plaintiff also believes