Jackson v. Norman et al
Filing
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MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Wayman Jackson motion is GRANTED( Initial Partial Filing Fee of $11.58 due by 10/27/2011.)IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. Signed by Honorable Stephen N. Limbaugh, Jr on 9/27/11. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
WAYMAN JACKSON,
Plaintiff,
v.
JEFF NORMAN, et al.,
Defendants.
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No. 1:11CV163 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Wayman
Jackson (registration no.1004003), an inmate at Southeast Correctional Center, for
leave to commence this action without payment of the required filing fee [Doc.
#2]. 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 $11.58. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of
the complaint, the Court finds that the complaint should be dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B).
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
$57.92, and an average monthly balance of $25.22. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $11.58, which is 20 percent of plaintiff’s average monthly .
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
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fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). 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).
To determine whether an action fails to state a claim upon 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 conclusion is the most plausible or whether it is more
likely that no misconduct occurred. Id. at 1950, 51-52.
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The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of
his civil rights. Plaintiff has named approximately seventeen (17) individuals
employed by the Missouri Department of Corrections as defendants in this action, and
he has made numerous allegations of denials of his purported constitutional rights.
For example, plaintiff complains that since August of 2008, defendants have: falsified
conduct violations; denied him access to courts; engaged in excessive force; failed
to protect him from attacks by other inmates; denied him personal property;
physically violated him during strip searches; planted drugs in his cell; acted with
deliberate indifference to his medical needs; verbally threatened him; violated his due
process rights to present evidence and witnesses during disciplinary hearings; served
him food and drink that has been tampered with; and subjected him to unsanitary
conditions of confinement.
Plaintiff seeks both monetary damages and injunctive relief for the purported
violations of his constitutional rights.
Discussion
The complaint is silent as to whether defendants are being sued in their
official or individual capacities. Where a “complaint is silent about the capacity in
which [plaintiff] is suing defendant, [a district court must] interpret the complaint
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as including only official-capacity claims.” Egerdahl v. Hibbing Community
College, 72 F.3d 615, 619 (8th Cir.1995); Nix v. Norman, 879 F.2d 429, 431 (8th
Cir. 1989). Naming a government official in his or her official capacity is the
equivalent of naming the government entity that employs the official, in this case
the State of Missouri. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71
(1989). “[N]either a State nor its officials acting in their official capacities are
‘persons’ under § 1983.” Id. As a result, the complaint fails to state a claim upon
which relief can be granted.
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 $11.58 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 because the complaint is legally
frivolous or fails to state a claim upon which relief can be granted, or both.
An Order of Dismissal will accompany this Memorandum and Order.
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Dated this 27th day of September, 2011.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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