Barton v. Wade

Filing 4

OPINION, 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 $1.98 within thirty (30) days of t he 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 remittan ce 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 th e Clerk shall issue process or cause process to issue upon the complaint. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant 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. Signed by Honorable Henry E. Autrey on 6/29/12. (TRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN BARTON,
Plaintiff,
v.
COREY WADE,
Defendant.

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No. 4:12CV1099 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of John Barton (registration
no. 1190186), an inmate at Jefferson City 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 $1.98. 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

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
$9.92, and an average monthly balance of $2.53. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $1.98, 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.
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25, 31 (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).
Discussion
Plaintiff brings this action under 42 U.S.C. § 1983. Plaintiff alleges that
defendant maliciously opened his food port and sprayed pepper spray into his cell.
The complaint survives review under 28 U.S.C. § 1915(e). The Court will,
therefore, order the Clerk to serve process on the complaint.
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 $1.98 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 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.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendant 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 29th day of June, 2012.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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