Morgan v. Wallace et al

Filing 5

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Clinton Wayne Morgan motion is GRANTED. IT IS FURTHER ORDERED that the no initial partial filing fee shall beassessed at this ti me. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to defendants Wallace and Thompson in their individual capacities through the waiver agreement the Court maintains with the Missouri Attorney General's Office. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant Wallace and Thompson shall reply to plaintiff's claims within the time provided by the applicable provisions of Rule 12(a) of the Federal Rul es of Civil Procedure. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to plaintiffs claims against defendants in their official capacities because these claims are legally frivolous or fai l to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to plaintiffs claims that defendants failed to respond to his grievances in a t imely manner because these claims are legally frivolous or fail 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. Signed by District Judge Stephen N. Limbaugh, Jr on 3/12/13. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CLINTON WAYNE MORGAN,
Plaintiff,
v.
IAN WALLACE, et al.,
Defendants.

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No. 1:13CV13 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
1023423), 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 will not be assessed an initial partial filing fee at this time. 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 a brief indicating that he has been unable to attain a
prisoner account statement. Accordingly, he will not be assessed an initial partial filing
fee at this time.
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).
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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
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his
civil rights during his incarceration at the Southeastern Correctional Center (“SECC”).
Named as defendants are Ian Wallace, Warden, and Cheryl Thompson, Functional Unit
Manager. Both individuals are named in both their official and individual capacities.
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Plaintiff states that he received a conduct violation on October 30, 2011 during
his incarceration at SECC for “conspiracy to introduce an illegal substance” into the
prison population. He states that his conduct violation was in violation of Institutional
Rule #11.2, for which he was originally told he would be placed in administrative
segregation for a minimum of twenty (20) days. Plaintiff asserts that each time his case
has been reviewed by the Administrative Segregation Review Committee, they have
continued his confinement in the Segregation Unit “due to the serious nature of the
violation.”1

On several occasions his case was reviewed directly by defendant

Thompson, the Chair of the Committee, who continued to increased his time in
administrative segregation and told him that “they are taking these #11.2s more
seriously now and that is the reason for the [psychological assessment request].” In fact,
defendant Thompson told him that he is being held there “indefinitely” until a
psychological assessment can be arranged for him, although plaintiff has not been given
a reason for a psychological assessment.
Plaintiff has appealed his extended time in administrative segregation directly to
defendant Wallace. He complained that the Institutional Rules “see” an #11.2 as a

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Plaintiff states that his case has been reviewed on several different occasions,
or at least nine (9) different times since he was transferred back from Crossroads
Correctional Center.
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“minor” violation, and he should not still be housed in administrative segregation more
than one-year later. Plaintiff has attached to his complaint defendant Wallace’s
September 21, 2012, response to his grievance. Regarding the length of time spent in
administrative segregation, Wallace states, “As stated in your IRR response, you were
assigned to administrative segregation due to the nature of conduct violation Rule #11.2
on 10/20/11. Trying to introduce illegal substances into an institutional setting is a
threat to the safety and security of the institution. Once the administrative segregation
committee and Warden deem necessary, you will be released to general population.”
Plaintiff takes issue with the length of time defendant Wallace took to respond
to his grievance.

However, the majority of his complaint concerns his belief that the

extended time he has been kept in administrative segregation is a violation of his due
process rights.
Plaintiff asks the Court for uniform guidance for the Missouri Department of
Corrections, setting forth the number of days that an inmate can be kept in
administrative segregation for a violation of each specific rule. Plaintiff additionally
seeks an order directing defendants to release him from administrative segregation.
Last, plaintiff seeks an order from this Court directing defendants to follow their own
grievance procedures.
Discussion
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For the Due Process Clause to be implicated, an inmate must be subjected to
“atypical and significant hardship . . . in relation to the ordinary incidents of prison
life.” Sandin v. Conner, 515 U.S. 472 (1995). Plaintiff has alleged that he has spent
more than a year at SECC in administrative segregation based on one specific conduct
violation. Although he notes that his case has been routinely “reviewed,” plaintiff’s
allegations are still sufficient to implicate a liberty interest at this juncture of the case
based on the sheer length of time he has spent in administrative segregation. As such,
the Court will direct the Clerk to issue process on plaintiff’s due process claims against
defendants Wallace and Thompson in their individual capacity.
Plaintiff’s claims against defendants however, in their official capacity, are
subject to dismissal. 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 a result, the complaint fails to state a claim upon which relief can be
granted against defendants in their official capacity.
Last, the Court will respond to plaintiff’s assertions regarding defendant
Wallace’s failure to timely respond to his grievance. “In the context of a state prison
system, an inmate grievance procedure is not constitutionally required.” Spencer v.
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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. As such, plaintiff’s assertions regarding defendant
Wallace’s failure to follow the State’s own grievance procedures fails to rise to the level
of a constitutional violation and must be dismissed.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the no initial partial filing fee shall be
assessed at this time.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to issue upon the complaint as to defendants Wallace and Thompson in their
individual capacities through the waiver agreement the Court maintains with the
Missouri Attorney General’s Office.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendant Wallace and Thompson shall reply to plaintiff’s claims within the time

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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 claims against defendants in their
official capacities because these claims are legally frivolous or fail to state a claim upon
which relief can be granted, or both.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint as to plaintiff’s claims that defendants failed to
respond to his grievances in a timely manner because these claims are legally frivolous
or fail 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 12th day of March, 2013.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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