Lee v. Gullett 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 $1.50 within twenty-one (21) 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 f or an original proceeding. IT IS FURTHER ORDERED that plaintiff's official-capacity claims are DISMISSED. IT IS FURTHER ORDERED that the Clerk is directed to serve process on the complaint. Defendants Gullett, Manche, and Nicholson should be ser ved in accordance with the Court's agreement with Missouri. Defendant Gardner should be served in accordance with the Court's agreement with Corizon, Inc. ( Initial Partial Filing Fee due by 8/24/2017.) Signed by District Judge Catherine D. Perry on 8/3/2017. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DARRIN L. LEE,
Plaintiff,
v.
THOMAS GULLETT, et al.,
Defendants.

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No. 1:17-CV-99 PLC

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 $1.50, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, the Court will dismiss plaintiff’s official-capacity claims.
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
Plaintiff is incarcerated in the Southeast Correctional Center. He alleges that defendants
Thomas Gullett and Tyson Manche, who are both correctional officers, beat him and pepper
sprayed him while he was handcuffed. He says defendant Kristen Gardner, who is a nurse,
refused to treat his injuries. He later found out he had a torn retina, among other things. And he
claims that defendant James Nicholson, who is an investigator, wrote a false report to the county
prosecutor to have charges brought against him.
Discussion
Plaintiff’s individual-capacity claims against the defendants are not frivolous. As a
result, the Court will order the Clerk to serve process on the complaint.
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. Will v.
Michigan Dep=t of State Police, 491 U.S. 58, 71 (1989). “[N]either a State nor its officials acting
in their official capacity are ‘persons’ under § 1983.” Id. As a result, the complaint fails to state
a claim upon which relief can be granted against defendants in their official capacities.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.

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IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $1.50
within twenty-one (21) 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 plaintiff’s official-capacity claims are DISMISSED.
IT IS FURTHER ORDERED that the Clerk is directed to serve process on the
complaint. Defendants Gullett, Manche, and Nicholson should be served in accordance with the
Court’s agreement with Missouri. Defendant Gardner should be served in accordance with the
Court’s agreement with Corizon, Inc.
Dated this 3rd day of August, 2017.

CATHERINE D. PERRY
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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