Stinson v. Green et al

Filing 5

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Douglas R. Stinson, Jr. motion is GRANTED( Initial Partial Filing Fee due by 2/17/2015.) IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B).. Signed by District Judge Stephen N. Limbaugh, Jr on 1/15/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DOUGLAS R. STINSON, JR.,
Plaintiff,
v.
NICOLE GREEN, et al.,
Defendants.

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No. 1:14CV188 ACL

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Douglas Stinson, an inmate at the
Dunklin County Justice 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 $5.90.
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 $29.50, and an average monthly
balance of $8.67. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $5.90, 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).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983 against the Dunklin County Justice
Center (“Justice Center”) and officials at the Justice Center. Plaintiff alleges that defendants
Jacob Peters and Jennifer Fox, who are correctional officers, opened his mail from this Court and
the Court of Appeals outside of his presence for inspection. Plaintiff says that defendant Nicole

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Green, who is the Jail Administrator, allows this practice to continue. Plaintiff sues defendants
in their official capacities.
Discussion
Plaintiff=s claim against the Justice Center is legally frivolous because it is not a suable
entity. Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (departments or
subdivisions of local government are “not juridical entities suable as such.”).
Naming a government official in his or her official capacity is the equivalent of naming
the government entity that employs the official. Will v. Michigan Dep’t of State Police, 491
U.S. 58, 71 (1989). To state a claim against a municipality or a government official in his or her
official capacity, plaintiff must allege that a policy or custom of the government entity is
responsible for the alleged constitutional violation. Monell v. Dep’t of Social Services, 436 U.S.
658, 690-91 (1978). The instant complaint does not contain any allegations that a policy or
custom of a government entity was responsible for the alleged violations of plaintiff’s
constitutional rights. As a result, the complaint fails to state a claim upon which relief can be
granted.
Additionally, plaintiff has not alleged a constitutional violation. The constitution requires
that privileged “legal mail,” e.g., mail from attorneys to inmates, must be opened in the presence
of the prisoner. E.g., Harrod v. Halford, 773 F.3d 234, 235 (8th Cir. 1985) cert. denied, 476 U.S.
1143 (1986). However, “[m]ail from the courts, as contrasted to mail from a prisoner’s lawyer,
is not legal mail.” Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996). This is because, “with
minute and irrelevant exceptions all correspondence from a court to a litigant is a public
document, which prison personnel could if they want inspect in the court’s files.” Martin v.
Brewer, 830 F.2d 76, 78 (7th Cir. 1987). Because plaintiff only alleges that prison staff opened

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documents sent by the federal courts, he has failed to state a claim for unconstitutional opening
of his legal mail. As a result, this case must be dismissed.
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 $5.90
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.
Dated this 15th day of January, 2015.

STEPHEN N. LIMBAUGH
UNITED STATES DISTRICT JUDGE

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