Hale v. Cooper et al

Filing 8

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. 5] 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 th is 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 Cooper. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant Cooper shall reply to plaintiff's claims within the time provided by the applicab le 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 defendants Phillips, Stange, Wallace, or Kempker because, as to these defendants, the complaint 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. ( Initial Partial Filing Fee due by 2/15/2013.) Signed by District Judge Stephen N. Limbaugh, Jr on 1/16/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
BILLIE R. HALE,
Plaintiff,
v.
JACKIE COOPER, et al.,
Defendants.

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No. 1:12CV188 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Billie Hale (registration no.
31944), an inmate at Southeast Correctional Center, 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 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 states that he requested a prison account statement but that the prison
refused to provide him one. In this instance, the Court will require him to provide a
partial initial 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.”).
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 § 1983. According to the exhibits attached
to the complaint, defendant Cooper read plaintiff’s legal mail on several occasions.
Cooper also threatened plaintiff on several occasions. Plaintiff requested grievance
forms from Phillips and the Assistant Warden, who refused to give plaintiff the forms.
As a result, plaintiff was unable to file a timely grievance.
Discussion
Plaintiff’s claim against Cooper for reading his legal mail states a claim for
relief under § 1983. Thongvanh v. Thalacker, 17 F.3d 256, 258-59 (8th Cir.1994)
(prisoners retain their First Amendment rights of sending and receiving mail, and
prison officials may not read inmates’ legal mail). As a result, the Court will order
Cooper to respond to the complaint.
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Plaintiff’s allegations that Cooper threatened to “knock the fuck out of [him]”
do not give rise to a claim under § 1983. See Burton v. Livingston, 791 F.2d 97, 99
(8th Cir. 1986) (“mere words, without more, do not invade a federally protected
right.”).
“In the context of a state prison system, an inmate grievance procedure is not
constitutionally required.” Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo.
1986). “If the state elects to provide a grievance mechanism, violations of its
procedures do not deprive prisoners of federal constitutional rights. Therefore, a
state’s failure to follow its grievance procedures does not give rise to a § 1983 claim.”
Id. For this reason, Phillips’s refusal to provide plaintiff with a grievance form does
not state a claim for relief.
“Liability under § 1983 requires a causal link to, and direct responsibility for,
the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th
Cir. 1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not
cognizable under § 1983 where plaintiff fails to allege that defendant was personally
involved in or directly responsible for the incidents that injured plaintiff); Boyd v.
Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in
§ 1983 suits). In the instant action, plaintiff has not set forth any facts indicating that
defendants Stange, Wallace, or Kempker were directly involved in or personally
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responsible for the alleged violations of his constitutional rights. As a result, the
complaint fails to state a claim upon which relief can be granted as to these
defendants.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. 5] 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.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to issue upon the complaint as to defendant Cooper.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendant Cooper 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.
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IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint as to defendants Phillips, Stange, Wallace, or
Kempker because, as to these defendants, the complaint 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 16th day of January, 2013.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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