Mosley v. Spaven et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Proceed in Forma Pauperis [ECF No. 2] is GRANTED. IT IS FURTHER ORDERED that the Plaintiff shall pay an initial filing fee of $21.10 within thirty (30) days of the date o f 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.IT IS FURTHER ORDERED that the Clerk sh all issue process or cause process to issue upon the Complaint. 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. ( Initial Partial Filing Fee due by 1/9/2015.) Signed by Magistrate Judge Abbie Crites-Leoni on 12/10/2014. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DEVIN MOSLEY,
Plaintiff,
v.
DONNA SPAVEN, et al.,
Defendants.

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No. 1:14CV177 ACL

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Devin Mosely (Registration No.
1233495), an inmate at Southeast Correctional Center, 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 will assess an initial partial filing
fee of $21.10. 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 sixmonth 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 $42.75, and an average monthly
balance of $105.50. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $21.10, 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 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 brings this action under 42 U.S.C. § 1983. He alleges that another inmate
poured a hot liquid onto his face and chest, causing him to suffer first and second degree burns.

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Plaintiff claims that Defendants, who are nurses or health care supervisors, refused to treat his
injuries or take him to the infirmary. Plaintiff says that he has suffered unnecessary pain and
permanent eye damage.
Discussion
The Complaint states a plausible claim against Defendants for deliberate indifference to
Plaintiff’s serious medical needs. As a result, the Court will direct the Clerk to serve process on
Defendants.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion to Proceed in Forma Pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the Plaintiff shall pay an initial filing fee of $21.10
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.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to
issue upon the Complaint. 1
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.

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Defendants appear to be employees of Corizon, Inc.
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IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard.
Dated this 10th day of December, 2014.

ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE

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