Palmer v. Wallace et al

Filing 6

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Cornellius Palmer; motion is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $22.77 w ithin 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 plaintiff shall file an amended complaint no later than thirty days from the date of this Order. (Initial Partial Filing Fee due by 3/7/2014, Response to Court due by 3/7/2014.) Signed by District Judge Stephen N. Limbaugh, Jr on 2/5/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
CORNELLIUS PALMER,
Plaintiff,
v.
IAN WALLACE, et al.,
Defendants.

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No. 1:14CV0009 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Cornelius Palmer (registration no.
1181923), 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 $22.77. See 28 U.S.C. § 1915(b)(1). Furthermore, the Court will order plaintiff to file an
amended 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 sixmonth 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 $27.50, and an average monthly
balance of $113.86. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $22.77, which is 20 percent of plaintiff's average
monthly balance.
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 Alacks an arguable basis in either law or 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
Aenough 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, an inmate at the Southeast Correctional Center (“SECC”), brings this action
under 42 U.S.C. § 1983. Named as defendants are Ian Wallace, the Warden at SECC, and
Stephen Bergeron, a correctional officer. Plaintiff sues defendants in their official capacities.
Plaintiff alleges that he had a dispute with Bergeron about his meal. Plaintiff then
purposely created a security risk by obstructing the view to his cell. Plaintiff refused Bergeron’s

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orders to remove the obstruction. A supervisor approached and told Bergeron to give plaintiff a
conduct violation and to put him on limited property status. Another correctional officer then
talked to plaintiff, and plaintiff voluntarily left his cell to be restrained on a bench. Outside the
cell, Bergeron told plaintiff that he would not give plaintiff a conduct violation if plaintiff
apologized. Plaintiff responded that he would “die first,” rather than apologize. Plaintiff claims
that Bergeron then called plaintiff a “punk” and told plaintiff that he “killed” punks like plaintiff.
Plaintiff asserts that while they were walking up the stairs, he spit in Bergeron’s face. Plaintiff
claims that Bergeron then threw him down the stairs. Plaintiff’s hands were cuffed behind his
back at that time.
Discussion
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 Missouri.

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).

“[N]either a State nor its officials acting in their official capacity are ‘persons’ under § 1983.”
Id. As a result, the complaint fails to state a claim upon which relief can be granted.
Additionally, A[l]iability 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 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (ABecause vicarious liability is
inapplicable to Bivens and ' 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official=s own individual actions, has violated the Constitution.@). In the

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instant action, plaintiff has not set forth any facts indicating that defendant Wallace was directly
involved in or personally responsible for the alleged violations of his constitutional rights. As a
result, the complaint fails to state a claim Wallace.
Because plaintiff is proceeding pro se, the Court will allow plaintiff to file an amended
complaint. Plaintiff shall have thirty days from the date of this Order to file an amended
complaint. Plaintiff is warned that the filing of an amended complaint replaces the original
complaint, and claims that are not realleged are deemed abandoned.

E.g., In re Wireless

Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). If plaintiff
fails to file an amended complaint within thirty days, the Court will dismiss this action without
prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $22.77
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 plaintiff shall file an amended complaint no later
than thirty days from the date of this Order.
Dated this 5th day of February, 2014.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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