Scott v. Morgan et al

Filing 3

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 the plaintiff shall pay an initial filing fee of $5.70 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 f or 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 Cl erk shall issue process or cause process to issue upon the complaint. The Correctional Officer defendants (Morgan, Weber, Russell and Peters) shall be served through the waiver agreement this Court maintains with the Missouri Attorney General' ;s Office, as these defendants appear to be employees of the Missouri Department of Corrections. The Clerk shall serve the medical defendants (Coffman, Mullen and Pribble) through the waiver procedures put in place for serving Corizon, Inc. employ ees in their individual capacities. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant(s) 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.. Signed by District Judge John A. Ross on 11/7/14. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KERWIN D. SCOTT,
Plaintiff,
v.
JERRY W. MORGAN, et al.,
Defendants.

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No. 4:14CV1853 JAR

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Kerwin Scott, 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 $5.70. 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 $28.50, and an average monthly
balance of $5.47. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $5.70, 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, 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, an inmate at ERDCC, brings this action through counsel pursuant to 42 U.S.C. §
1983 alleging violations of his 8th Amendment rights. Plaintiff states that he was subjected to

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excessive force by four correctional officers at ERDCC and that two nurses and a medical doctor
were deliberately indifferent to the injuries he sustained as a result of the incident. Plaintiff
brings his claims against defendants in their individual capacities.
The Court finds that plaintiff’s claims, as stated, properly allege violations of his
Constitutional rights.

Thus, the Court will order the Clerk to issue process on plaintiff’s

complaint.
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 $5.70
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 Clerk shall issue process or cause process to
issue upon the complaint. The Correctional Officer defendants (Morgan, Weber, Russell and
Peters) shall be served through the waiver agreement this Court maintains with the Missouri
Attorney General’s Office, as these defendants appear to be employees of the Missouri
Department of Corrections. The Clerk shall serve the medical defendants (Coffman, Mullen and
Pribble) through the waiver procedures put in place for serving Corizon, Inc. employees in their
individual capacities.

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IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant(s)
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 7th day of November, 2014.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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