Hankins v. Russell et al

Filing 4

MEMORANDUM AND ORDER re: 2 ORDERED that plaintiff's motion to proceed in formapauperis [Doc. 2] is GRANTED. FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $68.90 within thirty (30) days of the date of this Order. FU RTHER 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. FURTHER ORDERED that the unidentified John Doe defendants are DISMISSE D from this action without prejudice. FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint. FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants 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. FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. Signed by District Judge Henry E. Autrey on 10/10/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RONNIE HANKINS,
Plaintiff,
v.
TERRY RUSSELL, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 4:13CV1999 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Ronnie Hankins
(registration no. 38420), an inmate at Eastern Reception Diagnostic and 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 $68.90.
See 28 U.S.C. § 1915(b)(1). Furthermore, the Court will order the Clerk to issue
process 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
$62.50, and an average monthly balance of $344.51. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $68.90, 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 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
-2-

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).
Discussion
Plaintiff brings this action under 42 U.S.C. § 1983 for alleged medical
mistreatment. Plaintiff alleges that defendants have refused to treat his infected gums
and decayed teeth. The Court finds that the allegations are not frivolous and that the
named defendants should respond to the complaint.
In general, fictitious parties may not be named as defendants in a civil action.
Phelps v. United States, 15 F.3d 735, 739 (8th Cir. 1994). An action may proceed
against a party whose name is unknown, however, if the complaint makes sufficiently
specific allegations to permit the identity of the party to be ascertained after
reasonable discovery. Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985). In this
case, the complaint does not contain allegations sufficiently specific to permit the
-3-

identity of the John Doe defendants to be ascertained after reasonable discovery.
These defendants are both unidentified and indeterminate in number. This is not
permissible. See Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995) (suit
naming “various other John Does to be named when identified” not permissible). As
a result, the John Doe defendants will be dismissed from 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 $68.90 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 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 unidentified John Doe defendants are
DISMISSED from this action without prejudice.
-4-

IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to issue upon the complaint.1
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants 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 10th day of October, 2013.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

1

Defendant Russell is a Missouri Department of Corrections employee.
Defendants Long, Bohnenkamp, and Bradshaw are alleged to be Corizon, Inc.,
employees located at ERDCC.
-5-