Goins v. Luster et al

Filing 5

OPINION, MEMORANDUM AND ORDER re: 2 ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $104.15 within thirty (30) days from the date of this Order. FURTHER ORDERED that plaintiff's motion to transfer the present action to the case of Goins v. Dickey, 4:12CV1584 ERW (E.D. Mo.) (Doc. #3) is DENIED. FURTHER ORDERED that the Clerk shall not issue process or cause proces s to issue upon the complaint at this time. FURTHER ORDERED that plaintiff shall file an amended complaint within thirty (30) days from the date of this Order, in accordance with the specific instructions set forth above. FURTHER ORDERED that the Cle rk shall mail to plaintiff the Court'sform for filing a complaint pursuant to 42 U.S.C. 1983. FURTHER ORDERED that plaintiff's failure to amend his complaint in accordance with this Court's instructions will result in the dismissal of this action, without prejudice and without further notice to him. ( Amended/Supplemental Pleadings due by 11/26/2012., Initial Partial Filing Fee due by 11/26/2012.). Signed by District Judge Henry E. Autrey on 10/25/12. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONAHUE GOINS,
Plaintiff,
v.
DALE LUSTER, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 4:12CV1761 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the application of Donahue Goins
(registration no. 524754) 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 fee1, and therefore, the motion will
be granted, and plaintiff will be assessed an initial partial filing fee. See 28 U.S.C.

1

The Court takes judicial notice of the prisoner account statement plaintiff
filed in a recent case plaintiff filed in this Court, Goins v. Dickey, 4:12CV1584
ERW (E.D. Mo.). On October 11, 2012, plaintiff filed a motion requesting leave
to transfer the instant action to his prior action and treat it as a "supplemental
complaint" in his prior action. However, the named defendants in this action are
entirely different than those named in the prior action, and the complaint in the
present action deals with allegations relating to separate transactions and
occurrences. Accordingly, the Court will deny his request.

§ 1915(b)(1). Furthermore, the Court will instruct plaintiff to file an amended
complaint in accordance with the instructions set forth below.
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 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. See 28
U.S.C. § 1915(b)(1). 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. See 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. See 28 U.S.C. § 1915(a)(1),(2). A review of plaintiff's account statement
indicates an average monthly deposit of $129.08, and an average monthly account
2

balance of $520.78. Plaintiff has insufficient funds to pay the entire filing fee.
Accordingly, the Court will assess an initial partial filing fee of $104.15, which is 20
percent of plaintiff's average monthly balance.
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 at any time 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 either
in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to
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, 112 S. Ct. 1728,
1733 (1992).
The Complaint

3

Plaintiff, an inmate at the Eastern Reception Diagnostic and Correctional
Center ("ERDCC"), seeks monetary relief in this 42 U.S.C. § 1983 action against
ERDCC employees Dale Luster, Howard Kitchell, Michael Rotter, Unknown
Wilfong, Unknown Roper, Terry Russell and the Missouri Inspector General.
Plaintiff's allegations arise out retaliatory attacks he alleged received from defendants
as a result of filing a lawsuit against another ERDCC employee for sexual assault and
excessive force.
The Court has reviewed the complaint under 28 U.S.C. § 1915(d) and believes
that, although plaintiff may be able to assert a claim based upon the denial of his
Constitutional rights, he has failed to state a claim upon which relief may be granted
at this time, because the complaint is silent as to whether he is suing the named
defendants in their official and/or individual capacities.2
Taking into consideration the fact that plaintiff is proceeding pro se and in
forma pauperis, the Court will grant him time to file an amended complaint on a
Court form, setting forth the capacity (i.e., official and/or individual) in which he is
suing each of the named defendants. Moreover, because the Court is allowing
plaintiff to amend his complaint, it will take no action as to the named defendants at
2

"[N]either a State nor its officials acting in their official capacity are
'persons' under § 1983." See Will v. Michigan Dep't of State Police, 491 U.S. 58,
71 (1989).
4

this time. Plaintiff is reminded that his amended complaint will supersede his original
complaint and will be the only complaint this Court reviews. Thus, plaintiff must
include in the "Caption" of the amended complaint the names of all defendants he
wishes to sue in this action; in the "Statement of Claim," he must set out, in separate
numbered paragraphs, specific facts against each named defendant, and he must state
whether he is suing each defendant in his individual and/or official capacity; and in
the "Relief" section, he must briefly set out what he wants the Court to do for him.
Plaintiff must also sign the amended complaint.
In accordance with the foregoing,
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 partial filing
fee of $104.15 within thirty (30) days from 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 plaintiff's motion to transfer the present
action to the case of Goins v. Dickey, 4:12CV1584 ERW (E.D. Mo.) (Doc. #3) is
DENIED.
5

IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint at this time.
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint
within thirty (30) days from the date of this Order, in accordance with the specific
instructions set forth above.3
IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff the Court's
form for filing a complaint pursuant to 42 U.S.C. § 1983.
IT IS FURTHER ORDERED that plaintiff's failure to amend his complaint
in accordance with this Court's instructions will result in the dismissal of this action,
without prejudice and without further notice to him.
Dated this 25th day of October, 2012.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

3

For his amended complaint, plaintiff shall use the court-provided form for
filing a complaint pursuant to 42 U.S.C. § 1983.
6