Schmidt v. Willoughby 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 must pay an initial filing fee of $4.50 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 a n original proceeding. IT IS FURTHER ORDERED that the Clerk is directed to serve defendant Robert Willoughby with process. Defendant is an employee of the Missouri Department of Corrections. ( Initial Partial Filing Fee due by 8/12/2016.) Signed by District Judge Stephen N. Limbaugh, Jr on 7/13/2016. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JUSTIN L. SCHMIDT,
Plaintiff,
v.
ROBERT WILLOUGHBY, et al.,
Defendants.

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No. 1:16-CV-160 SNLJ

MEMORANDUM AND ORDER
Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42
U.S.C. § 1983. Having reviewed plaintiff’s financial information, the Court assesses a partial
initial filing fee of $4.50, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, the Court will order the Clerk to serve defendant Robert Willoughby
with process.
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief under § 1983, a complaint must plead more than “legal conclusions”
and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief [is] a

context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
The Complaint
Plaintiff brings this action against correctional officer Robert Willoughby and several
other John Doe officers. He alleges that defendants failed to protect him from his cellmate, who
had been bullying him. He claims he requested protective custody from Willoughby but that
Willoughby refused. Later, plaintiff got into an altercation with his cellmate, and he sustained
severe facial injuries.
Discussion
The Court finds that the complaint should not be dismissed at this time. As a result, it
will order that Willoughby be served with process.
The Court cannot order service on the John Doe defendants. Plaintiff should attempt to
learn their names as soon as is practical. He will need to file an amended complaint in order to
state any actionable claims against them.
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 must pay an initial filing fee of $4.50
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.1

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Prisoners must pay the full amount of the $350 filing fee. 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

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IT IS FURTHER ORDERED that the Clerk is directed to serve defendant Robert
Willoughby with process. Defendant is an employee of the Missouri Department of Corrections.
Dated this 13th day of July, 2016.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

prisoner’s account. The agency having custody of the prisoner will deduct the payments and forward them to the
Court each time the amount in the account exceeds $10. 28 U.S.C. § 1915(b)(2).

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