Slagle v. Huffman-Phillips, et al

Filing 18

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff Dennis L. Slagle, 8 MOTION to Amend/Correct 1 DCM Complaint filed by Plaintiff Dennis L. Slagle. IT IS HEREBY ORDERED that plaintiff's motio n to proceed in forma pauperis [Doc. #2] is GRANTED.IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $5.83 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to &q uot;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's motio n to amend his complaint with various supplements, declarations and interlineations to the original complaint [Doc. #8] is DENIED. IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). An Order of Dismissal will accompany this Memorandum and Order. (Initial Partial Filing Fee due by 7/7/2014.) Signed by District Judge Stephen N. Limbaugh, Jr on 6/5/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DENNIS L. SLAGLE,
Plaintiff,
v.
PAULA HUFFMAN-PHILLIPS, et al.,
Defendants.

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No. 1:14CV30 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Dennis Slagle (registration
no. 534829), an inmate at Southeast Correctional Center (“SECC”), 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 $5.83. 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 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 $29.17, and an average monthly
balance of $8.08. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $5.83, 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 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).
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

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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 Complaint1
Plaintiff, an inmate at SECC, brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights against defendants Ian Wallace (Warden) and Paula HuffmanPhillips (Assistant Warden).
Plaintiff states that he was a convicted sex offender who was transferred to SECC to
reside in their protective custody unit. He asserts that despite telling defendants that there were
“hits” out for him by inmates being held in general population, defendants told him they wanted
to transfer him into general population. He claims defendant Huffman-Phillips had him written
up and thrown into administrative segregation for throwing a cup away too loudly. He asserts, in

Plaintiff has submitted several supplements, declarations, memoranda, and “amendments” in an
attempt to amend his original complaint by interlineation. None of plaintiff’s amendments were
on a court-provided form, in direct contravention of Local Rule 2.06(A), which requires pro se
plaintiffs to utilize such a form when drafting pleadings. Further, the Court does not accept
amendments to the complaint through supplements, declarations, notices or other piecemeal
amendments. See Popoalii v. Correctional Medical Services, 512 F.3d 488, 497 (8th Cir.2008)
(finding that it is appropriate to deny leave to amend a complaint when a fully proposed
amendment was not submitted with the motion). As such, plaintiff’s motion to amend his
complaint [Doc. #8] will be denied, and the Court will review his original complaint pursuant to
28 U.S.C. § 1915.
1

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a conclusory fashion, that defendant Huffman-Phillips also tried to stop him from accessing the
Courts.
Discussion
The complaint is silent as to whether defendants are being sued in their official or
individual capacities. Where a Acomplaint 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 Dept. of State Police, 491 U.S. 58, 71 (1989). A[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.
Even if plaintiff had brought his claims against defendants in their individual capacities,
he still could not have stated a claim under the Eighth Amendment for his confinement in
administrative segregation. 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 Ado[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 Ato 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

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liberty interest, and his allegations relating to his confinement in administrative segregation are
subject to dismissal pursuant to 28 U.S.C. ' 1915(e)(2)(B).
Similarly, plaintiff has not stated an access to courts claim against defendants. To state
an access to courts claim, inmates must assert that they suffered an actual injury to pending or
contemplated legal claims. Myers v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996). Plaintiff has
failed to do so. As such, even if he had brought his claims against defendants in their individual
capacities, he still would not have stated a claim for denial of access to the courts.
Last, to state a failure-to-protect claim, plaintiff was required to allege that (1) defendants
were aware of facts from which they could infer the existence of a substantial risk of serious
harm to him, (2) they actually drew the inference, and (3) they failed to take reasonable steps to
protect him. See Farmer v. Brennan, 511 U.S. 825, 836-38, 844 (1994). Assault by a fellow
inmate constitutes Aserious harm.@

Jensen v. Clarke, 94 F.3d 1191, 1198 (8th Cir. 1996).

Plaintiff has failed to allege that defendants actually placed him in a substantial risk of serious
harm because he has not stated that he was actually placed in general population or with those
who had “hits” out on him. As such, even if he had alleged his claims against defendants in their
proper capacity, his failure to protect claims could not suffice.
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 $5.83
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.

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IT IS FURTHER ORDERED that plaintiff’s motion to amend his complaint with
various supplements, declarations and interlineations to the original complaint [Doc. #8] is
DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 5th day of June, 2014.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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