Proby v. Bullock et al

Filing 6

MEMORANDUM AND ORDER: HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $37.60 within thirty (30) days of the date of this Or der. 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 origi nal proceeding. 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. FURTHER ORDERED that plaintiff's official-capaci ty claims and claims against"St. Francois County Jail Administrator" are DISMISSED without prejudice. FURTHER ORDERED that the Clerk shall otherwise 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. An Order of Partial Dismissal will be filed contemporaneously.( Initial Partial Filing Fee due by 11/2/2014.). Signed by District Judge Henry Edward Autrey on 10/02/2014. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GEORGE PROBY, JR.,
Plaintiff,
v.
D.R. BULLOCK, et al.,
Defendants.

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No. 4:14CV1355 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of George Proby, Jr. (registration no.
1237464), an inmate at Jefferson County 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 $37.60. 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 sixmonth 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 $30.00, and an average monthly
balance of $188.00. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $37.60, 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 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, 32-33 (1992); Scheuer v. Rhodes, 416 U.S. 232,
236 (1974).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983. Defendants are officials of St.
Francois County, the State of Missouri, the Missouri Department of Corrections, and Corizon,

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Inc. Plaintiff alleges that the defendants assaulted him and also denied him medical care both for
the injuries he sustained in the assault and for his high blood pressure. Plaintiff also alleges that
his public defender had him placed in a dangerous facility in order to induce a guilty plea.
Discussion
After carefully reviewing the complaint, the Court finds that plaintiff’s claims against the
named defendants in their individual capacities survive review under 28 U.S.C. § 1915(e). As a
result, the Court will direct the Clerk to serve process on the defendants.
Plaintiff’s claims against defendants in their official capacities do not state a claim for
relief. Plaintiff has not alleged that a policy or custom of St. Francois County or Corizon led to
his injuries. And plaintiff’s claims against the state employees are barred by the Eleventh
Amendment. As a result, the Court will dismiss plaintiff’s official-capacity claims.
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). Plaintiff’s claims against “St. Francois County Jail Administrator” do not
provide specific allegations permitting the identity of the party to be ascertained during
discovery. As a result, the Court will dismiss this fictitious party without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $37.60
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

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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 plaintiff’s official-capacity claims and claims against
“St. Francois County Jail Administrator” are DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Clerk shall otherwise issue process or cause
process to issue upon the complaint.
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.
An Order of Partial Dismissal will be filed contemporaneously.
Dated this 2nd day of October, 2014.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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