Bond v. St. Louis County Jail et al
Filing
4
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 plaintiff shall pay an initial filing fee of $48.32 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 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. 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 plai ntiff'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.. Signed by District Judge Rodney W. Sippel on 1/31/14. (LGK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRENCHIE BOND,
Plaintiff,
v.
ST. LOUIS COUNTY JAIL, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
No. 4:13-CV-2130-RWS
MEMORANDUM AND ORDER
This matter is before the Court upon review of plaintiff’s motion for leave to
proceed in forma pauperis [Doc. #2]. For the reasons stated below, the Court will
grant plaintiff in forma pauperis status and assess an initial partial filing fee of
$48.32. In addition, the Court will instruct plaintiff to file an amended 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
$241.58 and an average monthly balance of $37.91. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $48.32, 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
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,
550 U.S. 544, 570 (2007). To determine whether an action fails to state a claim upon
2
which relief can be granted, the Court must engage in a two-step inquiry. First, the
Court must identify the allegations in the complaint that are not entitled to the
assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These
include “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of
action [that are] supported by mere conclusory statements.” Id. at 1949. Second, the
Court must determine whether the complaint states a plausible claim for relief. Id. at
1950-51. This is a “context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Id. at 1950. The plaintiff is required to
plead facts that show more than the “mere possibility of misconduct.” Id. The Court
must review the factual allegations in the complaint “to determine if they plausibly
suggest an entitlement to relief.”
Id. at 1951.
When faced with alternative
explanations for the alleged misconduct, the Court may exercise its judgment in
determining whether plaintiff’s proffered conclusion is the most plausible or whether
it is more likely that no misconduct occurred. Id. at 1950-52.
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).
3
The Complaint
Plaintiff, an inmate at the Missouri Eastern Correctional Center, brings this
action pursuant to 42 U.S.C. § 1983 for alleged constitutional violations that took
place at the St. Louis County Jail on August 29, 2011. Named as defendants are the
St. Louis County Jail, Unknown Smith (a correctional officer), and Herbert Bernsen
(Director, St. Louis County Justice Center).
Discussion
At the outset, the Court notes that plaintiff has failed to complete Section III
of the complaint titled “Grievance Procedures,” and instead, has typed: “NOT A
GRIEVANCE MATTER.” The Court disagrees; the facts at issue in this lawsuit
constitute a grievance matter, and plaintiff should have presented his complaints to
the grievance system at the St. Louis County Jail.1 It is unclear what, if any, steps
plaintiff took to fully exhaust his prison grievances prior to filing this case.
Because 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
grievance procedures he undertook at the St. Louis County Jail relative to the alleged
1
Under the Prison Litigation Reform Act, “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). Exhaustion is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002).
4
constitutional violations that took place there on August 29, 2011. Moreover,
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 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.
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
$48.32 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.
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.2
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 31st day of January, 2014.
_________________________________
UNITED STATES DISTRICT JUDGE
2
For his amended complaint, plaintiff shall use the Court-provided form for
filing a complaint pursuant to 42 U.S.C. § 1983.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?