Smith v. Phillips et al

Filing 6

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 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 ori ginal 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 and fails to state a claim upon which relief can be granted. See 28 U.S.C. ' 1915(e)(2)(B).A separate Order of Dismissal shall accompany this Memorandum and Order ( Initial Partial Filing Fee due by 4/22/2015.) Signed by District Judge Jean C. Hamilton on 3/23/2015. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DERRICK RAY SMITH,
Plaintiff,
v.
PAULA PHILLIPS, et al.,
Defendants.

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No. 1:14-CV-186-ACL

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Derrick Ray Smith
(registration no.363686) for leave to commence this action without payment of the
required filing fee [Doc. #2]. For the reasons stated below, the motion will be
granted and plaintiff will be assessed an initial partial filing fee of $1.98. See 28
U.S.C. ' 1915(b)(1). Furthermore, based upon a review of the complaint, the Court
finds that this action 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 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 $.25. 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 may 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 against a defendant who is
immune from such relief. An action is frivolous if Ait lacks an arguable basis in
either law or in fact.@ Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action
fails to state a claim upon which relief can be granted if it does not plead Aenough
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facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
In reviewing a pro se complaint under ' 1915(e)(2)(B), the Court must give
the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519,
520 (1972). The Court must also weigh all factual allegations in favor of the
plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504
U.S. 25, 32-33 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The Complaint
Plaintiff, an inmate at Southeast Correctional Center (ASECC@), seeks
monetary relief in this action for the violation of his constitutional rights under 42
U.S.C. ' 1983. Named as defendants are Paula Phillips (Acting Warden), Ian
Wallace (Warden), Michael Vinson (Captain), Dave Dormire (Director), and Leary
Armstrong (Correctional Officer). Plaintiff’s allegations arise out of an incident
that took place on December 24, 2013, at SECC. More specifically, plaintiff
alleges, “I had suffered an injury from falling out of a bed trying to sit up for
morning count.” Plaintiff does not describe what type of injury he had sustained,
but he states that after he was taken to the infirmary, he was placed in a cell with no
toilet and “passed out . . . [and] urinated on [him]self while unconscious in [a]
wheelchair.”

Plaintiff complains that he asked for a change of clothing and
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requested to take a shower and see a doctor; however, defendant Vinson ordered
defendant Armstrong “to do nothing for [him] because [he] was not an infirmary
patient, but [was] in administrative segregation.” Plaintiff further alleges that
defendants Phillips, Wallace, and Dormire denied his IRR as untimely, but “the
untimeliness should have been waived,” because the delay was due to SECC
refusing to give plaintiff a grievance form. Plaintiff sues defendants in both their
individual and official capacities.
Discussion
Having carefully reviewed the complaint, the Court concludes that dismissal
is warranted under 28 U.S.C. ' 1915(e)(2)(B). 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. See 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 is
legally frivolous and fails to state a claim upon which relief can be granted as to all
defendants in their official capacities.
The complaint is also legally frivolous as to all defendants in their individual
capacities. Plaintiff’s claims against Phillips, Wallace, and Dormire for allegedly
failing not to waive the untimeliness of his IRR simply do not rise to the level of a
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constitutional violation and fail to state a claim or cause of action under ' 1983. See
Daniels v. Williams, 474 U.S. 327, 328 (1986) (mere negligence does not rise to the
level of a constitutional violation); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (mere
negligence is not cognizable as Eighth Amendment violation); Boyd v. Knox, 47
F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in ' 1983
suits); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (grievance procedure is
procedural right only and does not confer substantive right on inmate).
Plaintiff’s conclusory claims that defendant Vinson instructed defendant
Armstrong to do nothing for plaintiff because he was not an “infirmary patient” and
was actually assigned to administrative segregation, also fall short of stating a
constitutional claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Stone v.
Harry, 364 F.3d 912, 914 (8th Cir. 2004) (although liberally construed, pro se
complaint must still allege sufficient facts to support claim advanced). Plaintiff’s
allegations fail to set forth not only the nature of what his physical problems were,
but also how and when he received assistance after having allegedly passed out in
his infirmary cell, and therefore, are too vague and conclusory to state a
constitutional claim. Although the Court must liberally construe plaintiff's factual
allegations, it will not supply additional facts or construct a legal theory for plaintiff
that assumes facts that have not been pleaded.
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For the above-stated reasons, the Court will dismiss this action pursuant to 28
U.S.C. ' 1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that 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 AClerk, 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 and
fails to state a claim upon which relief can be granted.

See 28 U.S.C. '

1915(e)(2)(B).
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 23rd day of March, 2015.

\s\
Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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