Burgin v. Hoskins et al
Filing
7
MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff George Burgin motion is GRANTED..IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partialfiling fee within thir ty (30) days of the date of this Order, then this case will bedismissed without prejudice.IT IS FURTHER ORDERED that the Clerk shall issue process or causeprocess to issue upon the complaint against defendants in both their individual and official ca pacities. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants shall reply to plaintiffs 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( Initial Partial Filing Fee due by 4/18/2013.) Signed by Magistrate Judge Lewis M. Blanton on 3/19/13. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
GEORGE BURGIN,
Plaintiff,
v.
BRYON HOSKINS, et al.,
Defendants.
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No. 1:13CV10 LMB
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
514885), 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 $4.86.
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
$11.75, and an average monthly balance of $24.31. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $4.86, which is 20 percent of plaintiff’s average monthly balance.
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
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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).
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, an inmate at Southeast Correctional Center (“SECC”), brings this
action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Named as
defendants are a correctional officer, Bryon Hoskins, as well as the Superintendent of
SECC, Jeff Norman.
Plaintiff asserts that defendant Hoskins, used excessive force on him in violation
of the Eighth Amendment, without provocation on September 8, 2010. Plaintiff asserts
that defendant Hoskins also engaged in a pattern and practice of unlawful conduct
against prisoners at SECC during his time as a correctional officer/drug task force
officer.
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Plaintiff claims that defendant Norman failed to properly train and supervise
defendant Hoskins and other men who were assigned to be members of the drug task
force/correctional officers. Plaintiff claims that defendant Norman was aware of the
unlawful conduct taking place by the officers but that he failed to take corrective action,
assure proper training and supervision or implement meaningful procedures to
discourage the officers from engaging in the unlawful conduct.
The Court finds that plaintiff’s allegations are sufficient to state a claim for relief
against defendants in both their individual and official capacities for excessive force
under the Eighth Amendment, as well as a failure to train/supervise. As such, the Court
will order the Clerk to issue process 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 the plaintiff shall pay an initial filing fee of
$4.86 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.
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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 against defendants in both their individual and
official capacities.
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
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 19th
day of March, 2013.
LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE
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