McDowell v. Kregg

Filing 6

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Otis McDowell, 4 MOTION to Appoint Counsel filed by Plaintiff Otis McDowell. IT IS HEREBY ORDERED that plaintiff's mo tion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $9.78 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to &q uot;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 issue process or cause process to be issued upon the complaint as to defendant Heather Kregg in her individual capacity only. IT IS FURTHER ORDERED that defendant Heather Kregg, in her individual capacity, shall reply to the complaint within the time provi ded by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. See 42 U.S.C. 1997e(g)(2). IT IS FURTHER ORDERED that plaintiff's official-capacity claims against defendant Heather Kregg are DISMISSED without prejudice. S ee 42 U.S.C. 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. #4] is DENIED, without prejudice. IT IS FURTHER ORDERED that, pursuant to this Court's differentiated case management system, this case is assigned to Track 5B (prisoner actions-standard). A separate Order of Partial Dismissal shall accompany this Memorandum and Order. (Initial Partial Filing Fee due by 4/1/2015.). Signed by District Judge Jean C. Hamilton on 3/2/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

OTIS MCDOWELL,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
HEATHER KREGG,
Defendant.

No. 1:14-CV-185-ACL

MEMORANDUM AND ORDER
This matter is before the Court on review of plaintiff=s motion for leave to
proceed in forma pauperis [Doc. #2].

For the reasons stated below, the Court will

grant plaintiff in forma pauperis status and assess an initial partial filing fee of
$9.78. In addition, the Court will (1) dismiss plaintiff's official-capacity claims
against defendant Heather Kregg; and (2) order the Clerk of Court to issue process
on the complaint as to defendant Kregg in her individual capacity.
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 $10.83 and an average monthly balance of $48.92. Plaintiff has insufficient
funds to pay the entire filing fee. Accordingly, the Court will assess an initial
partial filing fee of $9.78, 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

2

is immune from such relief. An action is frivolous if Ait 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 Aenough
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.
(2009).

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51

These include Alegal conclusions@ and A[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 Acontext-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 Amere
possibility of misconduct.@ Id. The Court must review the factual allegations in
the complaint Ato 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 proffered

3

conclusion is the most plausible or whether it is more likely that no misconduct
occurred. Id. at 1950-52.
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).
The Complaint
Plaintiff, an inmate at the Southeast Correctional Center, brings this action
for monetary relief pursuant to 42 U.S.C. ' 1983 against defendant Heather Kregg
(Correctional Officer). Liberally construing the complaint, plaintiff is alleging
that he was brutally attacked on April 2, 2014, after Kregg intentionally allowed
another inmate to enter plaintiff’s cell and assault him. Plaintiff alleges that he
was “cut across [his] chest with a razor and [was] hit in the eye with a wooden
brush.” Plaintiff is suing defendant in both her individual and official capacities
for deliberate indifference to his safety and security.

4

Discussion
I. Official Capacity Claims
Naming a government official in his or her official capacity is the equivalent
of naming the government entity that employs the official, in this case the State of
Missouri. See Will v. Michigan Dep=t of State Police, 491 U.S. 58, 71 (1989).
A[N]either a State nor its officials acting in their official capacity are >persons=
under ' 1983.@ Id. As a result, the complaint is legally frivolous and fails to
state a claim upon which relief can be granted as to defendant Heather Kregg in her
official capacity.
II. Individual Capacity Claims
Plaintiff's 42 U.S.C. ' 1983 allegations against defendant Kregg in her
individual capacity state a claim for Eighth Amendment violations, and therefore,
the Court will order process to issue against said defendant.
III. Motion for Counsel
Plaintiff seeks appointment of counsel on the grounds that he has a
meritorious case and he lacks sufficient funds to pay an attorney.
AA pro se litigant has no statutory or constitutional right to have counsel
appointed in a civil case.@ Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998).
When determining whether to appoint counsel for an indigent litigant, the Court

5

considers relevant factors, such as the complexity of the case, the ability of the pro se
litigant to investigate the facts, the existence of conflicting testimony, and the ability
of the pro se litigant to present his or her claim. Id.
After reviewing these factors, the Court finds that the appointment of counsel
is not warranted at this time. This case is neither factually nor legally complex.
Moreover, it is evident that plaintiff is able to present his claims, because the Court
has ordered defendant to respond to plaintiff=s individual-capacity claims.
Consequently, the motion will be denied at this time, without prejudice.
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of
$9.78 within thirty (30) days of the date of this Order. Plaintiff is instructed to
make his remittance payable to AClerk, 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 issue process or cause
process to be issued upon the complaint as to defendant Heather Kregg in her
individual capacity only.

6

IT IS FURTHER ORDERED that defendant Heather Kregg, in her
individual capacity, shall reply to the complaint within the time provided by the
applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.

See

42 U.S.C. ' 1997e(g)(2).
IT IS FURTHER ORDERED that plaintiff's official-capacity claims
against defendant Heather Kregg are DISMISSED without prejudice. See 42
U.S.C. ' 1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff=s motion for appointment of
counsel [Doc. #4] is DENIED, without prejudice.
IT IS FURTHER ORDERED that, pursuant to this Court=s differentiated
case management system, this case is assigned to Track 5B (prisoner
actions-standard).
A separate Order of Partial Dismissal shall accompany this Memorandum
and Order.
Dated this 2nd day of March, 2015.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

7