Bell v. Strange et al
Filing
5
MEMORANDUM AND ORDER..granting 4 MOTION to Supplement 1 DCM Complaint filed by Plaintiff Robert Bell, Jr...granting 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Robert Bell, Jr. motion is GRANTED. .IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $2.00 within thirty (30) days of the date of this Order.( Initial Partial Filing Fee due by 8/8/2011.)IT IS FURTHER ORDERED that if plaintiff fails to pay the initial p artial 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. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. Signed by Honorable Stephen N. Limbaugh, Jr on 7/8/11. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT BELL, JR.,
Plaintiff,
v.
BILL STRANGE, et al.,
Defendants.
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No. 1:11CV91 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
526934), an inmate at Southeast Correctional Center, for leave to commence this action
without payment of the required filing fee [Doc. #2]. For the reasons stated below, 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 $2.00.
See 28 U.S.C. § 1915(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
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 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
$10.02, and an average monthly balance of $.18. Plaintiff has insufficient funds to pay
the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$2.00, which is 20 percent of plaintiff’s average monthly deposit.
28 U.S.C. § 1915(e)
Pursuant 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.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to state a claim upon
which relief can 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, 127 S. Ct. 1955, 1974 (2007).
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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
(1972). 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 (1992);
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 against defendant
correctional officers at SECC alleging violations of his civil rights. Specifically, plaintiff
alleges that defendants have failed to abide by his “medical lay-in” which restricts the
amount of time he is allowed to stand at any one time. Plaintiff asserts that defendants
are engaging in deliberate indifference to his serious medical needs of arthritis in
retaliation for him availing himself of the grievances and court systems.
Plaintiff’s allegations survive initial review under § 1915, and the Court will order
the Clerk to issue process or cause process to be issued on defendants.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
[Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to supplement his complaint
[Doc. #4] is GRANTED.
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IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of
$2.00 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
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.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendant(s) shall reply to plaintiff’s 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.
Dated this 8th day of July, 2011.
STEPH EN N . LIM BA UGH, JR.
UNITED STATES DISTRICT JUDGE
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