Davis v. Torshein et al

Filing 7

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that Plaintiffs motion for leave to proceed in forma pauperis (Doc. 2) is GRANTED. IT IS FURTHER ORDERED that Plaintiff shall pay an initial filing fee of $1.00 within thirty (30) days of the date of th is Order. IT IS FURTHER ORDERED the Complaint is DISMISSED without prejudice. The Clerk shall not issue process or cause process to issue upon the Complaint.IT IS FURTHER ORDERED that Plaintiff's motion for appointment of counsel (Doc. 4) is DENIED as moot.IT IS FURTHER ORDERED that Plaintiffs motion to add parties (Doc. 5) is DENIED as moot ( Initial Partial Filing Fee due by 10/19/2022.). Signed by District Judge Sarah E. Pitlyk on 9/19/22. (MRS)

Case: 1:22-cv-00080-SEP Doc. #: 7 Filed: 09/19/22 Page: 1 of 4 PageID #: 33
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
BRYCE DAVIS,
v.

Plaintiff,

SAMUEL TORSHEIN, et al.,
Defendants.

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Case No. 1:22-cv-00080-SEP

MEMORANDUM AND ORDER

Before the Court is self-represented Plaintiff Bryce Davis’s motion for leave to

proceed in forma pauperis. Doc. 2. For the reasons set forth below, the Court will grant the

motion and assess an initial partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1).

Moreover, having reviewed the Complaint, the Court will dismiss this case for failure to
state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2).
INITIAL PARTIAL FILING FEE

Under 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% 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% 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 those 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 is a pretrial detainee at the Butler County Justice Center. Doc. 1 at 2.

Plaintiff’s motion to proceed in forma pauperis states that he has no job, no income, no

assets, and no money in his prison account. Doc. 2 at 1-2. In support of his motion, Plaintiff

submitted a jail inmate account statement, but the statement shows only account

transactions for a one-month period. Doc. 3. Based on the information submitted, the

Court finds that Plaintiff has insufficient funds in his prison account to pay the entire fee
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and will therefore assess an initial partial filing fee of $1.00. See Henderson v. Norris, 129
F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the Court with a

certified copy of his prison account statement, the Court should assess an amount “that is

reasonable, based on whatever information the court has about the prisoner’s finances.”).
THE COMPLAINT 1

Plaintiff brings this action under 42 U.S.C. § 1983 against three correctional officers

employed at the Justice Center—Samuel Torshein, Cody Collem, and Taylor Whitely, all in
their individual and official capacities—and alleges that Defendants violated his
constitutionally protected civil rights. Doc. 1.

Plaintiff writes on his complaint: “Today is 5-20-2022 and I have just now today

been able to fill out a grievance about what happened to me. . . . The Grievance number is

493780, the time I filed it was 14:27:19 pm and the date is 5-20-2022.” Doc. 1 at 12. Under
the Complaint’s section for ‘Exhaustion of Administrative Remedies/Administrative

Procedures,’ asked what result he received from his grievance filing, Plaintiff states: “I have
yet to know. They are electronically filed and answered. I have yet to receive an answer.”

Id. at 16. He states that he has not appealed any grievance decision because he has not yet

received an answer that he can appeal.

DISCUSSION

Pursuant to the Prison Litigation Reform Act (PLRA), “[n]o action shall be brought

with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail,

prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory for all suits about prison life,
and it is a prerequisite to bringing a federal lawsuit. Porter v. Nussle, 534 U.S. 516, 524
(2002). The exhaustion requirement applies regardless of whether administrative

procedures provide the prisoner relief. Booth v. Churner, 532 U.S. 731, 741 (2001). “An

inmate satisfies § 1997e(a) by pursuing ‘the prison grievance process to its final stage’ to
‘an adverse decision on the merits.’” Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015)
(quoting Burns v. Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014)).

For the purposes of this motion, the Court assumes that the factual allegations in the Complaint,
Doc. 1, are true. See Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

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The Eighth Circuit has recognized that an inmate must exhaust administrative

remedies before filing suit and has instructed that district courts look to the time of filing,

not the time the district court is rendering its decision, to determine if exhaustion occurred.
Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003). If a prisoner has not exhausted his

administrative remedies at the time he files his civil action, the court must dismiss the
action. Id.

Although “inmates are not required to specially plead or demonstrate exhaustion in

their complaints,” a court may dismiss a complaint for failure to exhaust administrative

remedies if it is plain on the face of the complaint that a grievance procedure has not been
exhausted. See Jones v. Bock, 549 U.S. 199, 215-16 (2007) (an affirmative defense can be a
ground for dismissal under failure to state a claim for relief when the allegations in the
complaint sufficiently establish that ground).

The PLRA’s exhaustion requirement applies to all inmate suits about prison life,

including allegations of excessive force like Plaintiff’s here. See Nussle, 534 U.S. at 525-32.
In this case, it is clear from the face of the Complaint that Plaintiff did not exhaust

administrative remedies before initiating this action as to the claims he now seeks to bring.
Plaintiff does not allege that there are no available remedies, nor that any prison official’s

action or omission prevented him from using the grievance procedure. Rather he states
that he filed his first grievance about this matter on the same day that he wrote his

Complaint, and that he was awaiting a grievance response that he could appeal. Because

Plaintiff did not his exhaust administrative remedies before initiating this action, the Court
must dismiss it.

Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s motion for leave to proceed in forma

pauperis (Doc. 2) is GRANTED.

IT IS FURTHER ORDERED that Plaintiff shall pay an initial filing fee of $1.00 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.

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IT IS FURTHER ORDERED the Complaint is DISMISSED without prejudice. The

Clerk shall not issue process or cause process to issue upon the Complaint.

IT IS FURTHER ORDERED that Plaintiff’s motion for appointment of counsel (Doc.

4) is DENIED as moot.

IT IS FURTHER ORDERED that Plaintiff’s motion to add parties (Doc. 5) is DENIED

as moot.

A separate Order of Dismissal will be issued herewith.
Dated this 19th day of September, 2022.

SARAH E. PITLYK
UNITED STATES DISTRICT JUDGE

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