Beyer v. Vinson et al
Filing
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MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff is granted in forma pauperis status in this action. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $1.98 within thirty (30) days from the date of this Or der. 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 origi nal proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint at this time. IT IS FURTHER ORDERED that plaintiff shall file an amended complaintwithin thirty (30) days from the date of this Order, in accordance with the specific instructions set forth above. IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff the Court's form for filing a complaint pursuant to 42 U.S.C. § 1983. IT IS FURTHER ORDERED that plaintiff 9;s failure to amend his complaint in accordance with this Court's instructions will result in the dismissal of this action, without prejudice and without further notice to him. Initial Partial Filing Fee due by 2/27/2014. Response to Court due by 2/27/2014. Signed by District Judge John A. Ross on 1/27/14. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DALTON DONALD BEYER,
Plaintiff,
v.
MICHAEL VINSON, et al.,
Defendants.
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No. 1:13-CV-184-JAR
MEMORANDUM AND ORDER
This matter is before the Court upon the application of Dalton Beyer
(registration no. 1232356) 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, plaintiff will be
granted in forma pauperis status and assessed an initial partial filing fee. See 28
U.S.C. § 1915(b)(1). Furthermore, the Court will instruct plaintiff to file an amended
complaint in accordance with the instructions set forth below.
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 $9.92, and an average monthly account
balance of $.31.
Plaintiff has insufficient funds to pay the entire filing fee.
Accordingly, the Court will assess an initial partial filing fee of $1.98, 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 at any time if the action is frivolous, malicious, fails to state a claim
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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 either
in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (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).
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, 112 S. Ct. 1728,
1733 (1992).
The Complaint
Plaintiff, an inmate at the Southeast Correctional Center ("SECC"), seeks
monetary relief in this 42 U.S.C. § 1983 action against correctional officers Michael
Vinson and Brett Hays. Plaintiff's allegations arise out of a physical and sexual
assault at SECC on August 3, 2013, as well as the loss of certain personal property.
In addition, plaintiff seems to be trying to assert a failure-to-protect claim. Plaintiff
also alleges that he was "refused [his] grievance procedure."
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The Court has reviewed the complaint under 28 U.S.C. § 1915(d) and believes
that, although plaintiff may be able to assert a claim based upon the denial of his
Constitutional rights, he presently has failed to state a claim upon which relief may
be granted, because the complaint is silent as to whether he is suing the named
defendants in their official and/or individual capacities.1
Taking into consideration the fact that plaintiff is proceeding pro se and in
forma pauperis, the Court will grant him time to file an amended complaint on a Court
form, setting forth the capacity (i.e., official and/or individual) in which he is suing
each of the named defendants. Moreover, because the Court is allowing plaintiff to
amend his complaint, it will take no action as to the named defendants at this time.
Plaintiff is reminded that his amended complaint will supersede his original complaint
and will be the only complaint this Court reviews. Thus, plaintiff must include in the
"Caption" of the amended complaint the names of all defendants he wishes to sue in
this action; in the "Statement of Claim," he must set out, in separate numbered
paragraphs, specific facts against each named defendant, and he must state whether
he is suing each defendant in his individual capacity, official capacity; or both
individual and official capacities; and in the "Relief" section, he must briefly set out
1
"[N]either a State nor its officials acting in their official capacity are
'persons' under § 1983." See Will v. Michigan Dep't of State Police, 491 U.S. 58,
71 (1989).
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what he wants the Court to do for him. Plaintiff must also sign the amended
complaint.
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff is granted in forma pauperis status
in this action.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $1.98 within thirty (30) days from 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 the Clerk shall not issue process or cause
process to issue upon the complaint at this time.
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint
within thirty (30) days from the date of this Order, in accordance with the specific
instructions set forth above.2
IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff the Court's
form for filing a complaint pursuant to 42 U.S.C. § 1983.
2
For his amended complaint, plaintiff shall use the court-provided form for
filing a complaint pursuant to 42 U.S.C. § 1983.
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IT IS FURTHER ORDERED that plaintiff's failure to amend his complaint
in accordance with this Court's instructions will result in the dismissal of this action,
without prejudice and without further notice to him.
Dated this 27th day of January, 2014.
_________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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