Fountain v. Wilson et al
Filing
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MEMORANDUM AND ORDER: 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 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 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. IT IS FURTH ER ORDERED that plaintiff's motion for extension of time [ECF No. 6] and motion to appoint counsel [ECF No. 4] are DENIED as moot. An Order of Dismissal will accompany this Memorandum and Order.( Initial Partial Filing Fee due by 3/28/2013.) Signed by District Judge Stephen N. Limbaugh, Jr on 2/26/2013. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DEVIN DESHAUN FOUNTAIN,
Plaintiff,
v.
ROBERT WILSON, et al.,
Defendants.
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No. 1:13CV00019 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Devin Fountain (registration
no. 1169613), 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 $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. Plaintiff alleges that he
was denied due process in prison disciplinary proceedings. Plaintiff says that he was
falsely accused of being involved in a disturbance and was given a major conduct
violation by defendant Wilson. Plaintiff claims that defendant Davis interviewed him
about the violation, and plaintiff says he requested that he be able to give a statement
and call a witness. Plaintiff states that Davis refused.
Later, the adjustment board held a hearing on the violation. Defendant
Meredith was part of the adjustment board. Plaintiff says he told Meredith that
Wilson gave him a false conduct violation because he was upset with plaintiff.
Plaintiff asserts that he was again denied the right to call witnesses to defend himself.
Plaintiff alleges that he was given thirty days in disciplinary segregation as a result.
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Discussion
Plaintiff’s claim that defendant gave him a false conduct violation is not
actionable under § 1983. See Glick v. Sargent, 696 F.2d 413, 414 (8th Cir. 1983)
(per curiam).
In order to determine whether plaintiff “possesses a liberty interest, [the Court
must] compare the conditions to which [plaintiff] was exposed in segregation with
those he . . . could ‘expect to experience as an ordinary incident of prison life.’”
Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (quoting Beverati v. Smith, 120
F.3d 500, 503 (4th Cir. 1997)). In this context, the Court “do[es] not consider the
procedures used to confine the inmate in segregation.” Id. (citing Kennedy v.
Bankenship, 100 F.3d 640, 643 (8th Cir. 1996)). For plaintiff “to assert a liberty
interest, he must show some difference between [the] conditions in segregation and
the conditions in the general population which amounts to an atypical and significant
hardship.” Id. Plaintiff makes no such assertions in the complaint. As a result,
plaintiff has failed to allege that defendants have infringed upon a constitutionally
protected liberty interest, and the complaint will be dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
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.
IT IS FURTHER ORDERED that plaintiff’s motion for extension of time
[ECF No. 6] and motion to appoint counsel [ECF No. 4] are DENIED as moot.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 26th day of February, 2013.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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