Anderson v. Lambordia et al

Filing 5

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 $1.98 within thirty (30) days of the date of t his 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 shal l issue process or cause process to issue upon the complaint as to defendants Kizer and Spitzer pursuant to theCourt's waiver agreement with the Missouri Attorney General's Office. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 19 97e(g)(2), defendants Kizer and Spitzer 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.IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to defendant George Lambordia, Ian Wallaceor Cheryl Thompson 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 F URTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to plaintiff's due process claims 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 plaintiff's motion for appointment of counsel [Doc. #4] is DENIED without prejudice. 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 4/10/2013.) Signed by District Judge Stephen N. Limbaugh, Jr on 3/11/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ANDRE ANDERSON,
Plaintiff,
v.
GEORGE LAMBORDIA, et al.,
Defendants.

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No. 1:13CV21 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
1334097), an inmate at Jefferson City Correctional Center, for leave to commence
this action without payment of the required filing fee [Doc. #2]. 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 $1.98. 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 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
$9.92, and an average monthly balance of $1.08. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $1.98, 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
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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).
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.
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The Complaint
Plaintiff, an inmate at Jefferson City Correctional Center (“JCCC”), brings this
action pursuant to 42 U.S.C. § 1983, alleging violations of his civil rights. Named
as defendants are: George Lambordia, (Director of the Missouri Department of
Corrections); Ian Wallace, (Warden at Southeastern Correctional Center (“SECC”));
Cheryl Thompson, (Functional Unit Manager, SECC); Jarome Kizer, (Correctional
Officer, SECC); and Kevin Spitzer, (Correctional Officer, SECC).
Plaintiff asserts that when he was being housed at SECC on May 2, 2012, he
was escorted from his cell by defendant Kizer to a restraint bench at approximately
2:00 a.m. Plaintiff asserts that upon removal from the bench by defendant Kizer he
turned his head and told defendant Kizer that he was being treated unfair and that he
would be filing an Informal Resolution Request (“IRR”) against him. Plaintiff claims
that defendant Kizer got very angry and:
slung plaintiff face first into a steel phone cage. He then attempted to
put plaintiff in a full Nelson, but plaintiff was cuffed. Defendant then
slung plaintiff to the middle of the day room in an attempt to make
plaintiff fall. When defendant J. Kizer seen his attempt failed then he
got behind plaintiff and attempted to slam him. This is when defendant
K. Spitzer came to assist J. Kizer. Defendant K. Spitzer then hoisted
plaintiff in the air. Slamming him face first into the cold hard concrete.
Defendant J. Kizer then placed a knee into the lower back of plaintiff.
Defendant K. Spitzer then placed a knee into the neck of plaintiff.
Defendant K. Spitzer also smashed plaintiff’s face in the floor yelling

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obscenitys. [sic] Then other C.O.’s helped in a restraint. The entire time
plaintiff was in wrist restraints.
Plaintiff asserts that defendant Kizer wrote a false conduct violation against him for
threats, saying he stopped the escort to his cell and faced him and threatened to head
butt him. Plaintiff claims that despite having video footage showing the altercation,
he was found guilty and issued the false conduct violation and presumably, placed in
administrative segregation.
He asserts that his due process rights were violated and that defendants’ acts
constituted cruel and unusual punishment. He sues defendants in their individual and
official capacities. In his request for relief he seeks monetary damages only.
Discussion
Plaintiff has stated a claim for relief against defendants Kizer and Spitzer for
excessive force pursuant to the Eighth Amendment. Moreover, the Court believes
that plaintiff has also stated a retaliation claim against defendant Kizer for filing an
alleged false conduct violation.1
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“[T]he First Amendment right to petition for redress of grievances includes
redress under established prison grievance procedures.” Dixon v. Brown, 38 F.3d
379, 379 (8th Cir. 1994) (citing Sprouse v. Babcock, 870 F.2d 450 (8th Cir.1989)).
“Although the filing of a false disciplinary charge is not itself actionable under §
1983, the filing of a disciplinary charge becomes actionable if done in retaliation
for the inmate’s filing of a grievance.” Id. An inmate need not show an
independent injury apart from the false disciplinary charge. Id. “Because the
retaliatory filing of a disciplinary charge strikes at the heart of an inmate’s
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Plaintiff’s claim for a due process violation, however, will be dismissed. To
state a claim under § 1983 for unconstitutional placement in administrative
segregation, a prisoner “must show some difference between his new conditions in
segregation and the conditions in the general population which amounts to an atypical
and significant hardship.” Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003).
Plaintiff has made no such allegations.
Similarly, plaintiff’s claims against the supervisory officials, Lambordia,
Wallace and Thompson will also be dismissed. “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 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). In the instant
action, plaintiff has not set forth any facts indicating that Lambordia, Wallace or
Thompson were directly involved in or personally responsible for the alleged
violations of his constitutional rights. See, e.g., Keeper v. King, 130 F.3d 1309, 1314

constitutional right to seek redress of grievances, the injury to this right inheres in
the retaliatory conduct itself.” Id.
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(8th Cir. 1997) (noting that general responsibility for supervising operations of prison
is insufficient to establish personal involvement required to support liability under §
1983); Woods v. Goord, 1998 WL 740782, at *6 (S.D.N.Y. October 23, 1998)
(receiving letters or complaints does not render prison officials personally liable
under § 1983).
Last, the Court will deny plaintiff’s motion for appointment of counsel at this
time. There is no constitutional or statutory right to appointed counsel in civil cases.
Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In
determining whether to appoint counsel, the Court considers several factors,
including (1) whether the plaintiff has presented non-frivolous allegations supporting
his or her prayer for relief; (2) whether the plaintiff will substantially benefit from the
appointment of counsel; (3) whether there is a need to further investigate and present
the facts related to the plaintiff’s allegations; and (4) whether the factual and legal
issues presented by the action are complex. See Johnson v. Williams, 788 F.2d 1319,
1322-23 (8th Cir. 1986); Nelson, 728 F.2d at 1005.
A review of plaintiff’s complaint indicates that he is competent to represent his
own interests at this time. Neither the factual nor the legal issues appear complex in
this case which primarily involves excessive force by two prison guards. As such, the
Court will deny plaintiff’s motion for appointment of counsel at this time.
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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 $1.98 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 defendants Kizer and Spitzer pursuant to the
Court’s waiver agreement with the Missouri Attorney General’s Office.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants Kizer and Spitzer 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.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint as to defendant George Lambordia, Ian Wallace
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or Cheryl Thompson 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 the Clerk shall not issue process or cause
process to issue upon the complaint as to plaintiff’s due process claims 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 plaintiff’s motion for appointment of
counsel [Doc. #4] is DENIED without prejudice.
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 11th day of March, 2013.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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