Smith v. Thompson et al

Filing 5

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Jermanine M. Smith motion is GRANTED( Initial Partial Filing Fee due by 2/28/2013.)IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $10.53 within thirty (30) days of the date of this Order. Signed by District Judge Stephen N. Limbaugh, Jr on 1/28/13. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JERMANINE M. SMITH,
Plaintiff,
v.
CHERYL THOMPSON, et al.,
Defendants.

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No. 1:12CV202 LMB

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
190560), 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 plaintiff does not have sufficient funds to pay the entire filing fee and
will assess an initial partial filing fee of $10.53. 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
$52.67, and an average monthly balance of $52.30. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $10.53, which is 20 percent of plaintiff’s average monthly deposit.
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
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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.
The Complaint
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Plaintiff, an inmate at Southeast Correctional Center brings this action pursuant
to 42 U.S.C. § 1983 alleging violations of his civil rights. Named as defendants are
employees of the Missouri Department of Corrections (“MDOC”): Cheryl Thompson
(Functional Unit Manager), Ian Wallace (Superintendent) and Bill Stange (Assistant
Warden).
Plaintiff appears to be asserting that he is not getting the proper diet or meals
for an unnamed medical condition. Plaintiff states that he suffers from diabetes and
high blood pressure and he claims, in a conclusory manner, that defendants let people
“play” with his food. He asserts he has written to defendant Stange and Thompson
4-5 times to let them know “they don’t go by state laws,” but he has not articulated
exactly what, if anything, he asked defendants to provide him.1
Plaintiff seeks monetary damages and injunctive relief for the alleged
violations of his civil rights.
Discussion
The essential elements of a constitutional claim under § 1983 are (1) that the
defendant acted under color of state law, and (2) that the alleged wrongful conduct
1

Plaintiff complains about another offender, Leroy Jones, and how he has
not been provided a proper diet, but plaintiff many only bring his own claims
before this Court. See 28 U.S.C. § 1654; see also 7A Wright, Miller & Kane,
Federal Practice and Procedure: Civil 3d § 1769.1 (“class representatives cannot
appear pro se.”).
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deprived the plaintiff of a constitutionally protected federal right. Schmidt v. City of
Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). Plaintiff has failed to properly
articulate exactly what federal or constitutional right he believes he is being deprived
of. Moreover, he has failed to link the specific allegation to an individual defendant
who has direct responsibility for the alleged deprivation of that right. See 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 defendant was personally involved in or directly responsible for incidents
that injured plaintiff); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat
superior theory inapplicable in § 1983 suits). Moreover, in a suit for deliberate
indifference to one’s serious medical needs, a plaintiff must allege, in a succinct
manner, that he suffered objectively serious medical needs and that each specific
defendant actually knew of but deliberately disregarded those needs. Dulany v.
Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997); see also, Estelle v. Gamble, 429 U.S.
97, 106 (1976); Camberos v. Branstad, 73 F.3d 174, 175 (8th Cir. 1995).
In the instant action, plaintiff has not set forth any facts indicating that any of
the named defendants were directly involved in or personally responsible for the
alleged violations of his constitutional rights. For example, plaintiff has not alleged
that because he suffers from a specific type of disease or chronic illness, he has been
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prescribed a specific diet by a doctor and that one of the individual defendants has
completely ignored the doctor’s instructions and failed to provide him with the
medical diet. Rather, he merely generally complains that some unnamed people are
“playing with his food” and he has high blood pressure and diabetes. He says he
wrote to the individual defendants about something, but he does not specifically state
what he wrote to them about or why, and plaintiff fails to assert what he expected the
defendants to do. Additionally, although plaintiff has stated generally that he suffers
from chronic medical conditions, he has not stated in his complaint exactly what
specific conditions he has complained of to defendants and what treatment he has
sought and how or when defendants allegedly disregarded his needs. As a result, the
complaint fails to state a claim upon which relief can be granted.
Additionally, plaintiff’s complaint fails to state a claim for yet another reason.
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 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
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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.
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 $10.53 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 28th day of January, 2013.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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