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)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION RONALD DALE BURSTON, JR., Plaintiff, v. JAMES COOPER, Defendant. ) ) ) ) ) ) ) ) ) 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. -2- 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. -3- 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 -4- 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. -5- 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 -6-

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