Hopkins v. Reed et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $7.82 within thirty (30) days fr om 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 remit tance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because plaintiff has failed to exhaust his prison grievances. See 42 U.S.C. § 1997e(a). IT IS FURTHE R ORDERED that plaintiff's motion for stay [Doc. #4] is DENIED as moot. A separate Order of Dismissal shall accompany this Memorandumand Order.( Initial Partial Filing Fee due by 10/10/2013.) Signed by District Judge Jean C. Hamilton on 9/10/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
LARRY L. HOPKINS,
Plaintiff,
v.
UNKNOWN REED, et al.,
Defendants.

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No. 1:13-CV-126-LMB

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Larry L. Hopkins
(registration no. 531113) for leave to commence this action without payment of the
required filing fee. For the reasons stated below, the Court finds that plaintiff does
not have sufficient funds to pay the entire filing fee, and therefore, the motion will be
granted and plaintiff will be assessed an initial partial filing fee of $7.82. See 28
U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the Court
finds that this action should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
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 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. See 28
U.S.C. § 1915(b)(1). 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. See 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. See 28 U.S.C. § 1915(a)(1),(2). A review of plaintiff's account statement
indicates an average monthly deposit of $39.08, and an average monthly account
balance of $6.78. Plaintiff has insufficient funds to pay the entire filing fee.
Accordingly, the Court will assess an initial partial filing fee of $7.82, 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 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
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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). 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, 550 U.S. 544,570
(2007).
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
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
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determining whether plaintiff's conclusion is the most plausible or whether it is more
likely that no misconduct occurred. Id. at 1950, 51-52.
Moreover, 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 (1992).
The Complaint
Plaintiff, an inmate at the Southeast Correctional Center ("SECC"), seeks
monetary and injunctive relief in this 42 U.S.C. § 1983 action against SECC
correctional officers Unknown Reed, Unknown Thurston, Unknown Cooper, and
Unknown Irby. Plaintiff alleges that in September 2012, defendants used excessive
force against him, were deliberately indifferent to his serious medical needs, and
retaliated against him for filing a complaint.
Discussion
At the outset, the Court notes that plaintiff has filed a motion to stay the instant
action on the ground that he is "waiting for the final exhaustion in the prison
grievance process." Plaintiff states that he is "submitting [his] complaint at this time
for [a] file number," because his time for filing is running.

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Under the Prison Litigation Reform Act, “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
Exhaustion is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). Where, as in
the instant case, it is apparent from the face of the complaint that a plaintiff has not
met the applicable exhaustion requirements, a Court may properly dismiss an in forma
pauperis complaint prior to service. Cf. Smith v. Unknown Corrections Officer, 196
Fed.Appx. 451, 2006 WL 2620837 (8th Cir. 2006). As noted above, plaintiff
concedes that he did not exhaust his available administrative remedies before filing
the instant action. Therefore, his claims presently are barred by 42 U.S.C. §
1997e(a).1
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $7.82 within thirty (30) days from the date of this Order. Plaintiff is instructed
To determine the applicable limitations period for § 1983 claims, federal
courts borrow state statutes of limitations for general personal injury claims.
Owens v. Okure, 488 U.S. 235, 249-50 (1989). In Missouri, the applicable
limitations period for general personal injury claims is five years. Mo. Rev. Stat. §
516.120(4) (2000).
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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 the Clerk shall not issue process or cause
process to issue upon the complaint, because plaintiff has failed to exhaust his prison
grievances. See 42 U.S.C. § 1997e(a).2
IT IS FURTHER ORDERED that plaintiff's motion for stay [Doc. #4] is
DENIED as moot.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 10th day of September, 2013.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

This dismissal shall not count as a strike against plaintiff for purposes of 28
U.S.C. § 1915(g).
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