Bodway v. Mumford et al

Filing 6

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $2.00 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 orig inal proceeding. IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint, in accordance with the instructions set forth in this Memorandum and Order, within twenty (20) days of the date of this Order. Signed by District Judge Audrey G. Fleissig on 2/28/2013. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LOUIS SEAN BODWAY,
Plaintiff,
v.
UNKNOWN MUMFORD, et al.,
Defendants.

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No. 4:13-CV-276-AGF

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Louis Sean Bodway
(registration no. 104992), an inmate at the St. Louis City Justice Center, for leave to
commence this action without payment of the required filing fee [Doc. #2]. For the
reasons stated below, the Court will assess an initial partial filing fee of $2.00, because
plaintiff does not have sufficient funds to pay the entire filing fee. See 28 U.S.C. §
1915(b)(1). Additionally, the Court will order plaintiff to file an amended complaint, as
well as any motions for injunctive relief that counsel deems necessary, within twenty (20)
days of the date of this Order.
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
$10.00, and an average monthly balance of $0.00. Plaintiff has insufficient funds to pay
the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$2.00, 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
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v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 112 S. Ct. 1728, 1733
(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, 127 S. Ct. 1955, 1974
(2007).
The Complaint
Plaintiff, an inmate at the St. Louis City Justice Center brings this action pursuant
to 42 U.S.C. § 1983 for Eighth Amendment violations arising out of the alleged lack of
medical care for his serious burn injuries. Having carefully reviewed the complaint, the
Court notes that plaintiff has not asserted allegations against all of the named defendants.
As such, and because counsel has been appointed to represent plaintiff in this action, the
Court will instruct plaintiff to file an amended complaint, as well as any motions for
injunctive relief that counsel deems necessary, within twenty (20) days of the date of this
Order. In the amended complaint, plaintiff shall state the capacity in which he is suing
each defendant (i.e., individual, official, or both).
Because the Court is allowing plaintiff to amend his complaint, it will take no
action as to the named defendants at this time. Plaintiff is advised that his amended
complaint will replace the original complaint and will be the only complaint this Court
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reviews. The Court will not consider any claims or allegations that are not included in
the amended complaint, even if they were asserted in the earlier complaint.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
[Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $2.00
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.
IT IS FURTHER ORDERED that plaintiff shall submit an amended complaint,
in accordance with the instructions set forth in this Memorandum and Order, within
twenty (20) days of the date of this Order.
Dated this 28th day of February, 2013.

UNITED STATES DISTRICT JUDGE

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