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Robison v. Norman

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

December 9, 2019

DWAYNE ROBISON, Plaintiff,
v.
JEFF NORMAN, et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon the motion of plaintiff Dwayne Robison, an inmate currently housed at Eastern Reception Diagnostic and Correctional Center (“ERDCC”), for leave to commence this action without prepayment of the filing fee. Having reviewed plaintiff's financial information, the Court will assess an initial partial filing fee of $4.00. In addition, for the reasons discussed below, the Court will dismiss the complaint without prejudice.

         Filing Fee Pursuant to the Prison Litigation Reform Act

         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.

         Plaintiff has submitted a declaration and a certified copy of his prison account statement for the five-month period preceding the submission of his complaint. A review of plaintiff's account indicates an average monthly deposit of $20.00, and an average monthly balance of $0. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $4.00, which is twenty percent of his 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 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). The claim must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Where the well-pleaded facts do not permit the inference of more than the “mere possibility of misconduct, ” the complaint has alleged, but has not shown, that the pleader is entitled to relief. Iqbal, 556 U.S. at 679 (citing Fed.R.Civ.P. 8(a)(2)); see also Twombly, 550 U.S. at 557 (if the well-pleaded facts are merely consistent with wrongdoing, the complaint stops short of the line between possibility and plausibility). 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. Iqbal, 556 U.S. at 679.

         The Complaint

         Plaintiff is currently an inmate at ERDCC, but his allegations concern his mail not being forwarded from Farmington Correctional Center (“FCC”). This case is one of eleven civil actions plaintiff has filed in this Court pro se and in forma pauperis since May 2, 2019.[1] He brings this action pursuant to 42 U.S.C. § 1983 against Jeff Norman (Deputy Division Director, Missouri Department of Corrections (“MoDOC”)), Sara Rogers (Mail Room Supervisor, FCC), Terri Lawson (Warden, FCC), and Anne Precythe (Director, MoDOC).

         Plaintiff's complaint is difficult to follow, but his allegations concern his not receiving mail at ERDCC. He alleges that he was transferred from FCC to ERDCC on May 21, 2019, but that he did not receive any mail from May 1 to May 17, 2019. He alleges that defendant Terri Lawson “allow[ed] the mail room to resend [it] back.” “I sent out 6-8 letter request[ing] catalogs on or around the end of the 4-29-19 up to 5-17-19 I am [illegible] to receive catalog oldies.com on regular and oriental trading[.]”

         Plaintiff alleges that Sara Rogers, the supervisor of the mailroom at FCC, has not transferred any of his subscriptions to ERDCC. “Mrs. Roger[s] refuse to transfer my mail she is return my mail is take appox. 2-4 week for Yaheweh Religious material to come in I sent on 4-30-19.” He states that he is to receive “oldies.com” every two to four weeks, but only four catalogs have arrived at ERDCC.

         “FCC is denied the fact that they keep return my mail. You have exact[ly] 30 day to receive [forwarded] mail from another camp once you transfer then is up to the offender to change address per policy. Mrs. Rogers is know[n] to hold mail and return mail the FCC staff has told me.” “I recent[ly] transfer and I am still not receiv[ing] my mail I sent a 9-10 letter within 30 day prior to me being transfer and the mail room is denied the fact that they are holding my mail.” Plaintiff states that he never received information on “Social Security federal court attorney name” that he requested. Nor has he received a response to a letter he wrote to a friend.

         Plaintiff attaches to his complaint a list of “mail not received.” The list includes ten items of mail he did not receive in May 2019, likely because of his transfer on May 21, 2019. For June, plaintiff lists two catalogs he did not receive; for July and August, he does not list any specific items ...


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