Burns v. Phillips et al
MEMORANDUM AND ORDER: 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 $2.00 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 this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Stephen N. Limbaugh, Jr on 9/24/2014. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
PAULA PHILIPS, et al.,
No. 1:14CV106 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Michael Burns (registration no.
1205316), 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 $2. 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 $10, and an average monthly balance
of less than $10. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $2, which is 20 percent of plaintiff's average
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).
Plaintiff brings this action under 42 U.S.C. § 1983 for alleged violations of his right to
procedural due process.
Plaintiff alleges that officials at Southeast Correctional Center
(“SECC”) gave him a conduct violation for damaging a window. He further alleges that he was
not allowed to present witnesses or documentary evidence at the violation hearing. He also says
he was not allowed to have a jailhouse lawyer at the hearing with him.
Plaintiff asserts that, as a result of the conduct violation, his conditional release date was
taken away from him by the Board of Probation and Parole. Plaintiff contends that the actions of
the officials violated his right to due process under the Fourteenth Amendment.
Plaintiff does not have a right to due process under the Fourteenth Amendment unless he
has a protected life, liberty or property interest.
A liberty interest may arise from the
Constitution itself or from state laws. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Plaintiff
does not have a constitutional right to conditional release. Greenholtz v. Inmates of Nebraska
Penal and Correctional Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent
right of a convicted person to be conditionally released before the expiration of a valid
sentence.”). And plaintiff does not have an established liberty interest in conditional release.
Dace v. Mickelson, 816 F.2d 1277, 1280-81 (8th Cir. 1987). As a result, plaintiff’s due process
claim fails as a matter of law.
Additionally, 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 Dep=t of State Police, 491 U.S. 58,
71 (1989). A[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
against the defendants for this reason as well.
Finally, the Court notes that plaintiff sent a letter to the Clerk of Court complaining that
he may be subject to future retaliation for having filed this lawsuit. The possibility of future
harm is not sufficient to state a claim under § 1983.
For these reasons, the Court will dismiss this action without prejudice.
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 $2.00
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
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 24th day of September, 2014.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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