Davis v. Lewis, No. 4:2018cv01718 - Document 14 (E.D. Mo. 2019)

Court Description: 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 $1.00 within thirty (30) days of th e 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 Tyler Lewis in his individual capacity only. Tyler Lewis shall be served with summons at the Warren County Jail. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997 e(g)(2), defendant Tyler Lewis 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 p rocess to issue as to Tyler Lewis in his official capacity because, as to this claim, the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel [Doc. # 3 ] is DENIED at this time. IT IS FURTHER ORDERED that this case is assigned to Track 5: Prisoner Standard. An Order of Partial Dismissal will accompany this Memorandum and Order.. Signed by District Judge Henry Edward Autrey on 5/6/19. (KJS)
Download PDF
Davis v. Lewis Doc. 14 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION TONY M. DAVIS, SR., Plaintiff, v. TYLER LEWIS, Defendant. ) ) ) ) ) ) ) ) ) No. 4:18-CV-1718 NAB OPINION, MEMORANDUM AND ORDER This matter is before the Court upon the motion of plaintiff Tony M. Davis, Sr., an inmate at Jefferson City Correctional Center (“JCCC”), 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 $1.00. 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 Dockets.Justia.com 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 not submitted a prison account statement. As a result, the Court will require plaintiff to pay an initial partial filing fee of $1.00. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the Court with a certified copy of his prison account statement, the Court should assess an amount “that is reasonable, based on whatever information the court has about the prisoner’s finances.”). If plaintiff is unable to pay the initial partial filing fee, he must submit a copy of his prison account statement in support of his claim. 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 lacks 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 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). The Complaint Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights during his incarceration at Warren County Jail. He asserts that a guard at the Jail, Tyler Lewis, used excessive force on his right arm when he pushed him back into his assigned cell. -2- Plaintiff states that this caused an injury to his shoulder, resulting in significant inflammation to his muscles and tendons, and necessitating medical attention. Plaintiff seeks compensatory and punitive damages, as well as injunctive relief. Discussion The Court will issue process on plaintiff’s excessive force claim against defendant Lewis in his individual capacity. However, plaintiff’s claim against defendant Lewis in his official capacity will be dismissed. Naming a government official in his or her official capacity is the equivalent of naming the government entity that employs the official. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). To state a claim against a municipality or a government official in his or her official capacity, plaintiff must allege that a policy or custom of the government entity is responsible for the alleged constitutional violation. Monell v. Dep’t of Social Services, 436 U.S. 658, 690-91 (1978). The instant complaint does not contain any allegations that a policy or custom of a government entity was responsible for the alleged violations of plaintiff’s constitutional rights. As a result, the complaint fails to state a claim upon which relief can be granted with respect to plaintiff’s claim against defendant Lewis in his official capacity. Last, plaintiff’s request for counsel will be denied at this time. The Court notes plaintiff has demonstrated, at this point, that he can adequately present his claims to the Court. Additionally, neither the factual nor the legal issues in this case are complex. Therefore, the Court will deny plaintiff’s request for counsel at this time. Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. -3- IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.00 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 Tyler Lewis in his individual capacity only. Tyler Lewis shall be served with summons at the Warren County Jail. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant Tyler Lewis 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 as to Tyler Lewis in his official capacity because, as to this claim, the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel [Doc. #3] is DENIED at this time. IT IS FURTHER ORDERED that this case is assigned to Track 5: Prisoner Standard. An Order of Partial Dismissal will accompany this Memorandum and Order. Dated this 6th day of May, 2019. HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE -4-