Smalley v. Gamache et al

Filing 13

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 $1.50 within thirty (30) days of the date of th is 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 pro ceeding. IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice. IT IS FURTHER ORDERED that the Clerk shall issue proce ss or causeprocess to issue upon the complaint as to Michael Gamache, who is alleged to be a deputy sheriff at the St. Louis City Justice Center. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant Gamache shall reply to p laintiffs claims within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard.. Signed by Honorable Rodney W. Sippel on 6/30/10. (LGK)

Smalley v. Gamache et al

Doc. 13

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION JAMES SMALLEY, Plaintiff, v. MICHAEL GAMACHE, et al., Defendants. ) ) ) ) ) ) ) ) )

No. 4:10CV319 RWS

MEMORANDUM AND ORDER This matter is before the Court upon the motion of James Smalley (registration no. 178598), an inmate at South Central Correctional Center, for leave to commence this action without payment of the required filing fee [Doc. #2]. 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 $1.50. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will order the Clerk to issue process or cause process to be issued on the complaint. 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

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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 $7.50, and an average monthly balance of $1.74. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $1.50, 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 may 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 against a defendant who is immune from such relief. An action is frivolous if "it lacks an arguable basis in either law or in fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to
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state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 3233 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Complaint Plaintiff brings this action under 42 U.S.C. § 1983. Named as defendants are Michael Gamache (Deputy Sheriff, St. Louis City Justice Center), and Five John Doe Sheriffs. Plaintiff seeks monetary relief. Plaintiff alleges that on February 28, 2007, while he was a pretrial detainee at St. Louis City Justice Center (SLCJC), he had an altercation with defendant Gamache and four or five other deputy sheriffs. Plaintiff says that he was being processed by an older deputy who was being verbally abusive towards him. Plaintiff states that he became verbally abusive towards the deputy and refused to follow the deputy's instructions. Plaintiff claims that the older deputy became angry with plaintiff and called Gamache from the control desk. Plaintiff maintains that he and Gamache were
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verbally abusive towards one another and that Gamache placed him in a holding cell a few feet away. Plaintiff alleges that Gamache then became angry with him, that Gamache retrieved a cannister of mace, and that Gamache began spraying mace on him while he was confined within the holding cell. Plaintiff claims that four or five other deputies then came into the holding cell and hit, kicked, and maced him. Plaintiff alleges that after he was assaulted he was not given medical treatment or taken to the medical department for some time, until a police officer came to take a report. Plaintiff also claims that he later complained of left rib pain for which he was refused medical treatment. Discussion Plaintiffs allegations against defendant Gamache and the other John Doe deputies who allegedly assaulted him survive initial review under 28 U.S.C. § 1915(e). As a result, the Court will order the Clerk to serve process as to defendant Gamache. 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 $1.50 within thirty (30) days of the date of this Order. Plaintiff is instructed to
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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 if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to Michael Gamache, who is alleged to be a deputy sheriff at the St. Louis City Justice Center. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant Gamache shall reply to plaintiff's claims within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. Dated this 30th day of June, 2010.

RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE

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