United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN R. CLARK UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of plaintiff Damon
Josiah Houston for leave to commence this civil action
without prepayment of the required filing fee. (Docket No.
3). 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 $60.31. See
28 U.S.C. § 1915(b)(1). Additionally, for the reasons
discussed below, the Court will dismiss plaintiff's
complaint without prejudice.
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 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 the Court each time the
amount in the prisoner's account exceeds $10.00, until
the filing fee is fully paid. Id.
support of his motion for leave to proceed in forma pauperis,
plaintiff has submitted a copy of his certified inmate
account statement. (Docket No. 4). The certified inmate
account statement shows an average monthly deposit of
$301.57. The Court will therefore assess an initial partial
filing fee of $60.31, which is 20 percent of plaintiff's
average monthly deposit.
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 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
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).
is a pro se litigant currently incarcerated at the Potosi
Correctional Center (PCC) in Mineral Point, Missouri. (Docket
No. 1 at 2). He brings this action pursuant to 42 U.S.C.
§ 1983. Five defendants are listed in the complaint: Dr.
William McKinney; Warden Travis Crews; Corizon Health Care;
Dr. Carl Doerhoff; and Grievance Officer R. Savage. (Docket
No. 1 at 2-4). Defendants are sued in both their individual
and official capacities.
states that on or about March 12, 2018, while at PCC, a
growth known as Giant Cell Granuloma began forming on his
forehead. (Docket No. 1 at 5). The growth caused him severe
migraines. On March 26, 2018, he was seen by Dr. McKinney.
(Docket No. 1 at 7). Plaintiff advised Dr. McKinney of the
severe headaches he was experiencing, as well as a swelling
behind both eyelids. According to plaintiff, Dr. McKinney
told him that it was “nothing but a cyst, ” and
that he would “drain it” if it got any bigger. At
that time, Dr. McKinney did not order a biopsy or send
plaintiff to get a CT scan.
April 17, 2018, plaintiff saw an eye doctor for the swelling
in both his eyelids and the pea-sized growths on his eyelids.
The eye doctor told plaintiff that the swelling and growths
were “most likely secondary damage from the abnormal
growth on the left side of [his] forehead.” On April
23, 2018, plaintiff's headaches were so severe he could
not work. He was also suffering blurry vision. He
self-declared to receive medical attention. Plaintiff was
sent to Washington County Memorial Hospital where he received
a CT scan.
days later, plaintiff saw Dr. McKinney, who measured the
growth and noticed that it had gotten larger. Plaintiff
asserts that Dr. McKinney did not “drain it like he
stated he would if it got bigger.” Instead, plaintiff
was sent back to his housing unit.
self-declared to medical on both April 28, 2018 and May 6,
2018, complaining about the growth on his forehead and the
pain he was experiencing. On May 7, 2018, he was again seen
by Dr. McKinney. Plaintiff states that Dr. McKinney
“ignored [his] complaint about the pain.” (Docket
No. 1 at 8). However, plaintiff acknowledges that Dr.
McKinney told plaintiff that he was “scheduled to see a
surgeon.” On May 10, 2018, he was seen by Dr. Doerhoff
through TeleMed. During the examination, Dr. Doerhoff told
plaintiff that he could not see the knot on plaintiff's
head. Dr. Doerhoff also told plaintiff that the droopiness in
his face and his swollen eyelids were not secondary effects
of the knot on his forehead.
23, 2018, plaintiff went to Jefferson City and saw Dr.
Doerhoff in his office to have a biopsy done. Plaintiff also
went to the hospital to have an MRI.
29, 2018, plaintiff went to University of Missouri Health
Care to be assessed for surgery and to receive his biopsy
results. The biopsy results were not cancerous. (Docket No. 1
at 9). Plaintiff had surgery to remove the growth on June 7,
2018. (Docket No. 1 at 5). The surgery took place at
University of Missouri Health Care. (Docket No. 1 at 9).
Following surgery, he was ...