Burston v. Cooper
Filing
5
MEMORANDUM AND ORDER re: 3 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Ronald Dale Burston, Jr. motion is GRANTED. IT IS FURTHER OR DERED that the plaintiff shall pay an initial filing fee of $1.00 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 n ame; (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 O rder, 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 plaintiffs individual capacity claims against defendant Cooper. Defendant shall be se rved according to the waiver agreement this Court maintains with Correctional Medical Service. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant Cooper shall reply to plaintiff's individual Capacity claims within th e time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to plaintiffs official capacity claims ag ainst defendant Cooper because as to these claims the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard( Initial Partial Filing Fee due by 6/11/2012.) Signed by Honorable Stephen N. Limbaugh, Jr on 5/11/12. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RONALD DALE BURSTON, JR.,
Plaintiff,
v.
JAMES COOPER,
Defendant.
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No. 1:12CV28 LMB
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
513412), an inmate at Northeast Correctional Center, for leave to commence this
action without payment of the required filing fee [Doc. #3]. 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 $1.00. See 28 U.S.C. §
1915(b)(1). Furthermore, after reviewing the complaint, the Court will partially
dismiss the complaint and will order the Clerk to issue process or cause process to be
issued on the non-frivolous portions of 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 filed a document stating that he has attempted to obtain a certified
copy of his prison account statement but that the officials have refused to provide him
with one. When a prisoner is unable to provide the Court with a certified copy of his
prison account statement, the Court should assess an amount “that is reasonable,
based on whatever information the court has about the prisoner’s finances.”
Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997). Based upon plaintiff’s
insistence that he currently is lacking in funds and is pursuing several cases in this
Court at the same time, the Court will assess an initial partial filing fee of $1.00.1
1
The Court notes that in an earlier case before this Court, plaintiff filed a
certified copy of his prison account statement that showed an average monthly
deposit of $143.33 and an average monthly balance of $104.08. See Burston v.
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28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must 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 from a defendant who is immune
from such relief. 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 is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose
of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify
the allegations in the complaint that are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009).
These include “legal
conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are]
supported by mere conclusory statements.” Id. at 1949. Second, the Court must
determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a “context-specific task that requires the reviewing court to draw on its
Missouri Dept. of Corr., 1:11CV221 HEA (E.D. Mo.). In that case, the Court
assessed an initial partial filing fee of $28.67 which plaintiff has paid.
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judicial experience and common sense.” Id. at 1950. The plaintiff is required to
plead facts that show more than the “mere possibility of misconduct.” Id. The Court
must review the factual allegations in the complaint “to determine if they plausibly
suggest an entitlement to relief.”
Id. at 1951.
When faced with alternative
explanations for the alleged misconduct, the Court may exercise its judgment in
determining whether plaintiff’s conclusion is the most plausible or whether it is more
likely that no misconduct occurred. Id. at 1950, 51-52.
The Complaint
Plaintiff, an inmate at Northeast Correctional Center, brings this action under
42 U.S.C. § 1983 against a doctor employed by Correctional Medical
Services/Corizon (hereinafter referred to as “CMS”), James Cooper.
Plaintiff’s allegations against defendant Cooper relate to violations of his
constitutional rights which purportedly occurred during his incarceration at Southeast
Correctional Center (“SECC”). Plaintiff claims that he was sexually assaulted by
defendant Cooper during a medical examination on March 24, 2010. Plaintiff brings
this action against defendant Cooper in both his official and individual capacity, and
he seeks both monetary damages and injunctive relief.
Discussion
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Plaintiff’s claim against defendant Cooper in his individual capacity for a
violation of the Eighth Amendment of the United States Constitution states a claim
for relief under 28 U.S.C. § 1915.
However, plaintiff’s claim against defendant Cooper in his official capacity
is subject to dismissal, as plaintiff has not made any allegations that a custom or
policy of CMS was responsible for the alleged violations of plaintiff’s constitutional
rights. See, e.g., Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989);
Monell v. Dep’t of Social Services, 436 U.S. 658, 690-91 (1978).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #3] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $1.00 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.
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IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to issue upon the complaint as to plaintiff’s individual capacity claims against
defendant Cooper. Defendant shall be served according to the waiver agreement this
Court maintains with Correctional Medical Service.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendant Cooper shall reply to plaintiff’s individual capacity 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 the Clerk shall not issue process or cause
process to issue upon the complaint as to plaintiff’s official capacity claims against
defendant Cooper because as to these claims the complaint is legally frivolous or fails
to state a claim upon which relief can be granted, or both.
IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner
Standard.
An appropriate Order of Partial Dismissal shall accompany this Memorandum
and Order.
Dated this 11th day of May, 2012.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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