Cunningham v. Sharpe
Filing
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OPINION 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 $10.20 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 as to defendant Correctional Officer John Sharpe in his individual capacity. Defendant shall be served through the waiver agreement this Court maintains with the Missouri Attorne y Generals Office. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant John Sharpe 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 the Clerk shall not issue process or cause process to issue upon the complaint as to plaintiffs official capacity claims against defendant John Sharpe because these claims are legally frivolous or fail to stat e a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. An Order of Partial Dismissal will accompany this Memorandum and Order. ( Initial Partial Filing Fee due by 6/16/2018.) Signed by District Judge Henry Edward Autrey on 5/17/18. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RODNEY CUNNINGHAM,
Plaintiff,
v.
JOHN SHARPE,
Defendant.
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No. 4:18CV753 DDN
OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Rodney Cunningham
(registration no. 506801), an inmate at Northeast Correctional Center (“NECC”), for leave to
commence this action without payment of the required filing fee. For the reasons stated below,
the Court finds that the plaintiff does not have sufficient funds to pay the entire filing fee and
will assess an initial partial filing fee of $10.20. See 28 U.S.C. § 1915(b)(1). Furthermore, after
reviewing the complaint, the Court will partially dismiss the complaint and will order the Clerk
to issue process or cause process to be issued on the non-frivolous portions of 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 $51.00. Plaintiff has insufficient
funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$10.20.
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 Alacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319,
328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (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
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
The Complaint
Plaintiff Rodney Cunningham, an inmate at NECC, brings this action pursuant to 42
U.S.C. § 1983 alleging violations of his civil rights. Named as the sole defendant in this action is
Correctional Officer John Sharpe.
Plaintiff brings this action against Sharpe in both his
individual and official capacities.
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Plaintiff asserts that Correctional Officer John Sharpe intentionally placed him in danger
by releasing him from his secured cell so that another inmate would have the ability to assault
him. Plaintiff alleges that Sharpe then attempted to “cover-up” his actions by falsely accusing
plaintiff of fighting and giving him a conduct violation for same.
Plaintiff seeks monetary damages in this action for defendant Sharpe’s purported
intentional acts.
Discussion
To state a failure-to-protect claim, a plaintiff is required to allege that defendants were
aware of facts from which they could infer the existence of a substantial risk of serious harm to
him, they actually drew the inference, and they failed to take reasonable steps to protect him.
See Farmer v. Brennan, 511 U.S. 825, 836-38, 844 (1994).
Assault by a fellow inmate
constitutes “serious harm.” Jensen v. Clarke, 94 F.3d 1191, 1198 (8th Cir. 1996). And a single
incident of violence may, in some circumstances, support a failure-to-protect claim. See Young
v. Selk, 508 F.3d 868, 870-73 (8th Cir. 2007) (discussing potential for substantial risk where
inmate told officials of cellmate’s threats, requested to be removed from cell immediately, said it
was an emergency, and was subsequently attacked).
The Court finds that in this early stage of the litigation, plaintiff has alleged enough to
support a failure to protect claim in this instance.1 The Court, will therefore, request that the
Clerk issue process on plaintiff’s claim against defendant in his individual capacity.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc.
#2] is GRANTED.
1
Plaintiff’s claim is valid against defendant only in his individual capacity. See Will v. Michigan
Dep=t of State Police, 491 U.S. 58, 71 (1989) (noting that neither a state entity, nor its officials,
can be liable pursuant to 42 U.S.C. § 1983). Therefore, plaintiff’s allegations against defendant
in his official capacity will be dismissed.
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IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $10.20
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 as to defendant Correctional Officer John Sharpe in his individual
capacity. Defendant shall be served through the waiver agreement this Court maintains with the
Missouri Attorney General’s Office.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant John
Sharpe 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 the Clerk shall not issue process or cause process to
issue upon the complaint as to plaintiff’s official capacity claims against defendant John Sharpe
because these claims are legally frivolous or fail to state a claim upon which relief can be
granted, or both.
IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard.
An Order of Partial Dismissal will accompany this Memorandum and Order.
Dated this 17th day of May, 2018.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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