Burston v. Smith

Filing 5

MEMORANDUM AND ORDER re: 3 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Ronald Dale Burston, Jr. motion is GRANTED. IT IS FURTHER OR DERED 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 n ame; (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 O rder, 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 Daniel Smith. Defendant shall be served in accordance with the waiver agree ment this Court maintains with the Missouri AttorneyGenerals Office. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant Daniel Smith shall reply to plaintiffs claims within the time provided by the applicable provisions o f 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 claim against defendant Smith in his official capacity because this claim is legally frivolous or fails to state a claim upon which relief can be granted, or both.IT IS FURTHER ORDERED that this case is assigned to Track 5B: PrisonerStandard( Initial Partial Filing Fee due by 6/11/2012.). Signed by Honorable Stephen N. Limbaugh, Jr on 5/11/12. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RONALD DALE BURSTON, JR.,
Plaintiff,
v.
DANIEL SMITH,
Defendant.

)
)
)
)
)
)
)
)
)

No. 1:12CV29 LMB

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
513412), an inmate at Northeast Correctional Center, for leave to commence this action
without payment of the required filing fee [Doc. #3]. 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 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 filed a document stating that he has attempted to obtain a certified
copy of his prison account statement but that the officials have refused to provide him
with one. 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.” Henderson v.
Norris, 129 F.3d 481, 484 (8th Cir. 1997). Based upon plaintiff’s insistence that he
currently is lacking in funds and is pursuing several cases in this Court at the same time,
the Court will assess an initial partial filing fee of $1.00.1

1

The Court notes that in an earlier case before this Court, plaintiff filed a
certified copy of his prison account statement that showed an average monthly
deposit of $143.33 and an average monthly balance of $104.08. See Burston v.
Missouri Dept. of Corr., 1:11CV221 HEA (E.D. Mo.). In that case, the Court
assessed an initial partial filing fee of $28.67 which plaintiff has paid.
-2-

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).

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
-3-

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.
The Complaint
Plaintiff, an inmate at Northeast Correctional Center, brings this action under 42
U.S.C. § 1983 against an employee of the Missouri Department of Corrections, Daniel
Smith, a correctional officer. Plaintiff asserts that defendant Smith intentionally violated
his privacy and initiated violence against him by other inmates by telling others that he
was infected by HIV, which caused other inmates to threaten plaintiff and beat him.
Plaintiff states that defendant Smith engaged in systematic verbal abuse against him,
causing him daily stress, shame and humiliation, and placing him in danger of attack
from other inmates, in violation of the Eighth Amendment. Plaintiff also asserts that
defendant acted in violation of the Missouri Aids Confidentiality Act by informing
others of his HIV status.
Plaintiff names Daniel Smith in both his individual and official capacity, and he
seeks both monetary and injunctive relief.
Discussion
Plaintiff’s claims against Daniel Smith in his individual capacity for violations
of the Eighth Amendment and the Missouri Aids Confidentiality Act state a claim for
relief under 28 U.S.C. § 1915.
-4-

Plaintiff’s claim against the Daniel Smith in his official capacity is subject to
dismissal because 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 such, plaintiff cannot maintain an official capacity claim against

defendant Smith.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
[Doc. #3] is GRANTED.
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.

-5-

IT IS FURTHER ORDERED that the Clerk shall issue process or cause process
to issue upon the complaint as to defendant Daniel Smith. Defendant shall be served in
accordance with 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 Daniel Smith 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 claim against defendant Smith in his
official capacity because this claim is legally frivolous or fails 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 appropriate Order of Partial Dismissal shall accompany this Memorandum and
Order.
Dated this 11th day of May, 2012.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

-6-