Schofield v. Hopkins

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $29.51 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. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. An Order of Dismissal will accompany this Memorandum and Order. Signed by Honorable Jean C. Hamilton on 4/26/12. (TRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
TIMOTHY SCHOFIELD,
Plaintiff,
v.
ROY HOPKINS,
Defendant.

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No. 2:12CV28 NAB

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Timothy Schofield
(registration no. 525613), an inmate at Tipton Correctional Center, for leave to
commence this action without payment of the required filing fee. For the reasons stated
below, the Court finds that plaintiff does not have sufficient funds to pay the entire
filing fee and will assess an initial partial filing fee of $29.51. See 28 U.S.C. §
1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that
the complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
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
$147.56, and an average monthly balance of $13.74. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $29.51, which is 20 percent of plaintiff’s average monthly deposit.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must 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 from a defendant who is immune from
such relief. An action is frivolous if it “lacks an arguable basis in either law or fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 504 U.S. 25, 31
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(1992). An action is malicious if it is undertaken for the purpose of harassing the
named defendants and not for the purpose of vindicating a cognizable right. Spencer
v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir.
1987). A complaint fails to state a claim if it does not plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983 against Roy Hokins, a
correctional officer at Moberly Correctional Center (“MCC”). Plaintiff alleges that
another inmate, Christopher Eaton, blamed him for being terminated from a laundry
job, and plaintiff claims that Eaton threatened to kill him as a result. Plaintiff asserts
that he reported the threats to defendant.
About a week later, says plaintiff, correctional officer Ferguson allowed Eaton
into the laundry area where plaintiff was working. Plaintiff alleges that Eaton attacked
him from behind, and plaintiff claims that Eaton then brutalized him and poured
chemicals into his mouth. Plaintiff seeks to hold defendant and Ferguson responsible
for the assault, on the basis that they failed to adequately protect him. According to the
exhibits attached to the complaint, correctional officers intervened promptly after the
assault occurred and plaintiff was given medical attention.
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Discussion
“To prevail in a suit under 42 U.S.C. § 1983, an inmate seeking damages from
prison officials for subjecting him to cruel and unusual punishment by failing to protect
him from assault by another inmate ‘must show something more than mere inadvertence
or negligence. He must show the defendants were deliberately indifferent to his
constitutional rights, either because they actually intended to deprive him of some right,
or because they acted with reckless disregard of his right to be free from violent attacks
by fellow inmates.’” Andrews v. Siegel, 929 F.2d 1326, 1330 (8th Cir. 1991) (quoting
Miller v. Solem, 728 F.2d 1020, 1025 (8th Cir. 1984)); see Farmer v. Brennan, 511
U.S. 825, 837-38 (1994) (deliberate indifference limited to intentional, knowing, or
recklessness in the criminal law context which requires actual knowledge of a serious
risk). “To establish ‘reckless disregard’ by prison officials, an inmate must show that
he was faced with a ‘pervasive risk of harm’ and that the prison officials failed to
respond reasonably to that risk.” Andrews, 929 F.2d at 1330. Showing “pervasive risk
of harm” “requires evidence of frequent violence or sexual assaults which places a
prisoner or group of prisoners in reasonable fear for their safety; and prisoners must
apprise the prison officials of the existence of the problem and the need for protective
measures. In every case, a ‘pervasive risk’ is something more than a single incident

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and something less than a riot.” Falls v. Nesbitt, 966 F.2d 375, 378 (8th Cir. 1992)
(emphasis added).
In this action, plaintiff complains of a single incident of violence, which is
insufficient to state a claim under § 1983 for failure to protect. Moreover, the
allegations in the complaint go to defendant’s negligence and fail to allege facts that
might show the requisite subjective intent. As a result, the Court will dismiss this
action without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of
$29.51 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.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint because the complaint is legally frivolous or fails
to state a claim upon which relief can be granted, or both.

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An Order of Dismissal will accompany this Memorandum and Order.
Dated this 26th day of April, 2012.

/s/Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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