Cunningham v. Green et al

Filing 6

MEMORANDUM AND ORDER re: 3 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Jimmy Cunningham; motion is GRANTED. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 3] is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $14 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court,&q uot; 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 this action is DISMISSED without prejudice. An Order of Dismissal will be filed separately. Signed by District Judge Stephen N. Limbaugh, Jr on 10/17/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JIMMY CUNNINGHAM,
Plaintiff,
v.
NICOLE GREEN, et al.,
Defendants.

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No. 1:16-CV-238 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 $14, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, this action is dismissed pursuant to 28 U.S.C. § 1915(e).
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, 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.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
The Complaint
During the time relevant to the complaint, plaintiff was a pretrial detainee in the Dunklin
County Justice Center. Defendants are correctional officers. Defendants found plaintiff guilty of
various conduct violations and sent him to disciplinary segregation for periods ranging from five
to twenty-two days.

Plaintiff alleges that the conditions of confinement in disciplinary

segregation were deplorable. He says there was blood on the walls of the cells, there was only
one, unsanitary toilet, there was trash on the floor, that he had to eat meal loaf, there was no
silverware, he was not allowed to receive mail or visitors, and the rooms were illuminated and
noisy twenty-four hours per day.
Discussion
To state a claim for unconstitutional prison conditions, a pretrial detainee must show that
(1) the conditions of confinement posed a substantial risk of serious harm and (2) that the prison
officials knew of but disregarded, or were deliberately indifferent to, plaintiff’s health and safety.
Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir. 2005). Assuming that the conditions in
disciplinary segregation posed a serious risk of harm, the complaint fails to state a claim upon
which relief can be granted because plaintiff has not alleged defendants knew of but deliberately
disregarded the threat to his safety. Although the Court must liberally construe plaintiff’s factual
allegations, it will not supply additional facts or construct a legal theory for plaintiff that assumes

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facts that have not been pled. As a result, the complaint must be dismissed under 28 U.S.C.
§ 1915(e).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [ECF
No. 3] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $14
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
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice.
An Order of Dismissal will be filed separately.
Dated this 17th day of October, 2016.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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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
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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