Bibby v. Bess et al

Filing 5

MEMORANDUM AND ORDER..granting 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Michael Bibby IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of$5.53 within thirty (30) days of the date of this Order>( Initial Partial Filing Fee due by 12/6/2010.)IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to defendants Bess and Kempker. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants shall reply to plaint iffs claims within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. Signed by Honorable Stephen N. Limbaugh, Jr on 11/4/10. (MRS)

B i b b y v. Bess et al

Doc. 5

UNITED STATES DISTRICT COURT E A ST E R N DISTRICT OF MISSOURI SO U T H E A ST E R N DIVISION M IC H A E L BIBBY, P l a i n t i f f, v. C H A D BESS, et al., D e fe n d a n t s . ) ) ) ) ) ) ) ) )

N o. 1:10CV171 SNLJ

M E M O R A N D U M AND ORDER T his matter is before the Court upon the motion of plaintiff (registration no. 1161330), an inmate at Southeast Correctional Center, for leave to commence this a ctio n without payment of the required filing fee [Doc. #2]. For the reasons stated be low , the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $5.53. See 28 U.S.C. § 19 15 (b)(1). Furthermore, after reviewing the complaint, the Court will order the Clerk to issue process or cause process to be issued on the 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 p au p e r i s 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

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greater of (1) the average monthly deposits in the prisoner's account, or (2) the average m on th ly 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 p a y m e nts 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 fo rw a rd these monthly payments to the Clerk of Court each time the amount in the prisoner's account exceeds $10, until the filing fee is fully paid. Id. Plaintiff 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 plaintiff's account indicates an average monthly deposit of $ 27 .6 7, and an average monthly balance of $5.77. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $5.53, which is 20 percent of plaintiff's average monthly deposit. 2 8 U.S.C. § 1915(e) P ursu an t to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. An action is frivolous if "it lacks an arguable basis in either law or in fact." N eitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon w h ic h relief can be granted if it does not plead "enough facts to state a claim to relief
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that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (200 7). In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1 972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33 (199 2); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). T he Complaint P la in tiff brings this action pursuant to 42 U.S.C. § 1983 alleging that he was subjected to excessive force by defendant Bess, a correctional officer at Southeast C orrectional Center. Plaintiff additionally alleges that defendant Kempker intentionally failed to review all available evidence regarding plaintiff's complaints as to the use of force and wrongfully denied his grievance appeal. Plaintiff names both defendants in both their official and individual capacities, and he seeks both monetary and injunctive relief. Plaintiff's claims survive initial review under 28 U.S.C. § 1915, as such the C lerk shall issue summons on plaintiff's complaint. A c c o rd in g ly , IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [D oc. #2] is GRANTED.

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IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $5.53 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fe e within thirty (30) days of the date of this Order, then this case will be dismissed w ith ou t prejudice. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to defendants Bess and Kempker. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants shall reply to plaintiff's claims within the time provided by the applicable p ro visio ns of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner S ta n d a rd . D ated this 4th day of November, 2010.

ST E PH E N N. LIMBAUGH, JR. U N IT E D STATES DISTRICT JUDGE

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