Morrison v. Wallace et al

Filing 4

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Steven Morrison motion is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing feeof $1.00 within thir ty (30) days of the date of this Order. Plaintiff is instructed tomake 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 remi ttance 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 failsto state a claim upon which relief can be granted, or both. An Order of Dismissal will accompany this Memorandum and Order.( Initial Partial Filing Fee due by 6/18/2012.) Signed by Honorable Stephen N. Limbaugh, Jr on 5/18/12. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
STEVEN MORRISON,
Plaintiff,
v.
IAN WALLACE, et al.,,
Defendants.

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No. 1:12CV79 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Steven Morrison
(registration no. 1006374), 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 $1.00. 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 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). In this instance, the Court
will assess an initial partial filing fee of $1.00.
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); 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 under 42 U.S.C. § 1983. Defendants are officials
at SECC. Plaintiff alleges that defendants forced him to give a urine sample on a day
when he had drunk a lot of water. Plaintiff claims that defendants later gave him a
conduct violation for submitting diluted urine, for which he received ten days in
administrative segregation and six months restricted visitation. Plaintiff states that
these conditions were very stressful.
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).
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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
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.
“[F]reedom of association is among the rights least compatible with
incarceration,” and some curtailment of that freedom must be expected in the prison
context. Overton v. Bazzetta, 539 U.S. 126, 131 (2003). In his complaint, plaintiff
alleges only that he was subjected to visitation restrictions. He does not allege
specific facts indicating that this denial of visits involved an atypical and significant
hardship in relation to the ordinary incidents of prison life. Sandin, 515 U.S. at 484.
As a result, plaintiff has failed to state a claim for unconstitutional denial of
visitations, and this action is legally frivolous.
Accordingly,

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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 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.
Dated this 18th day of May, 2012.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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