Hutchinson v. Huffman-Phillips et al

Filing 5

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Omar Hutchinson motion is GRANTED...IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $5.80 within th irty (30) days of the date of this Order.( Initial Partial Filing Fee due by 12/12/2011.)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 Rodney W. Sippel on 11/10/11. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
OMAR HUTCHINSON,

)
)
Plaintiff,
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v.
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)
PAULA HOFFMAN-PHILLIPS, et al., )
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Defendants.
)

No. 1:11CV198 LMB

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Omar Hutchinson
(registration no. 33789), an inmate at Southeast Correctional Center (“SECC”), 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 $5.80. 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
$13.50, and an average monthly balance of $28.98. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $5.80, 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 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.
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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 under 42 U.S.C. § 1983. Named as defendants are
Paula Huffman-Phillips (Functional Unit Manager, SECC), Crystal Steward
(Classificational Caseworker, SECC), John Roach (Correctional Officer, SECC), and
Carol Bates (Toxicology Lab Manager, Missouri Department of Corrections
(“MoDOC”)).
Plaintiff alleges that defendant Roach took a urinalysis sample from him and
sent it to MoDOC’s toxicology lab, where defendant Bates processed the labs.
Plaintiff says that Bates knowingly processed the labs incorrectly, which Bates knew
could cause a false positive for ketamine. Plaintiff claims the test came back positive
for ketamine, which resulted in him receiving a conduct violation and spending six
months in administrative segregation. Plaintiff maintains that the result of the test is
a false positive. Plaintiff asserts that Roach was also aware of the problems with the
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lab results. Plaintiff alleges that, in addition to receiving six months of administrative
segregation time, this matter may prevent him from qualifying for parole in the future.
Plaintiff further alleges that defendants Hoffman-Phillips and Steward arbitrarily
assigned him to administrative segregation even though they knew there were
problems with the procedures in the lab that caused false positives for ketamine.
Plaintiff argues that his right to due process was violated because he was
arbitrarily placed in administrative segregation based on lab reports defendants knew
to be untrue. Plaintiff further alleges that Bates was deliberately indifferent to his
rights by using a test known to be faulty.
Discussion
An inmate who makes a due process challenge to his placement in
administrative segregation must make a threshold showing that the deprivation of
which he complains imposed an “atypical and significant hardship . . . in relation to
the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
Plaintiff’s allegations do not indicate that he suffered the type of atypical and
significant hardship that might conceivably give rise to a liberty interest. Id. at 48586 (no atypical and significant hardship where inmate spent 30 days in solitary
confinement): Hemphill v. Delo, 124 F.3d 208 (8th Cir. 1997) (unpublished) (same;
30 days in disciplinary segregation, and approximately 290 days in administrative
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segregation); Wycoff v. Nichols, 94 F.3d 1187, 1190 (8th Cir. 1996) (same; 10 days
disciplinary detention and 100 days in maximum security cell). As a result, the
allegations relating to plaintiff’s placement in administrative segregation fail to state
a claim upon which relief can be granted.
Furthermore, plaintiff’s allegations that Bates conducted faulty lab tests do not
implicate the Eighth Amendment because placement in administrative segregation for
six months does not constitute cruel and unusual punishment.
Finally, plaintiff’s claim that he may one day be denied parole is speculative
and may not give rise to relief under § 1983.
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 $5.80 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.

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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.
Dated this 10th day of November, 2011.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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