White v. Wallace et al

Filing 5

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff David Germaine White. 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 must pay an initial filing fee of $11 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 incl ude 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 without prejudice. An Order of Dismissal will be filed separately. (Initial Partial Filing Fee due by 5/12/2016.) Signed by District Judge Stephen N. Limbaugh, Jr on 4/12/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DAVID GERMAINE WHITE,

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Plaintiff,
v.
IAN WALLACE, et al.,
Defendants.

No. 1:16CV58 SNLJ

MEMORANDUM AND ORDER
Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42
U.S.C. § 1983. Having reviewed plaintiff’s financial information, the Court assesses a partial
initial filing fee of $11, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, the Court finds that this action must be dismissed for failure to state a
claim upon which relief can be granted.
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief under § 1983, a complaint must plead more than “legal conclusions”
and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief [is] a

context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
The Complaint
Plaintiff brings this action against several officials at the Southeastern Correctional
Center (“SECC”). According to plaintiff’s exhibits, he requested a transfer to SECC from
another facility to participate in the Institutional Treatment Center (“ITC”) Program, which is a
substance abuse treatment course. When the program began, plaintiff refused to participate in it
and signed the “Treatment Refusal” request.
Plaintiff was given a conduct violation for making a false statement. He was placed in
temporary administrative segregation on about July 27, 2015. He objected to the violation on the
basis that he had a right to change his mind.
Plaintiff complained to defendant Paula Reed that his procedural due process rights were
violated because he was never given a formal hearing for his administrative segregation
placement. Reed responded that plaintiff would remain in the Restrictive Housing Unit (“RHU”)
pending transfer to another facility “due to violation of your ITC contract.”
Plaintiff filed an Informal Resolution Request (“IRR”) complaining that he did not see
the RHU committee for more than seven days after his confinement in segregation, which he
claimed violated prison policy. His IRR was denied because prison staff realized their mistake
and the committee saw him on August 13, 2015. His grievance and grievance appeal were
denied for the same reason.
Plaintiff complains that his right to equal protection has been violated because he was
held in administrative segregation longer than offenders who committed more serious
infractions.

Plaintiff also complains that he was only allowed to wear underwear in

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administrative segregation and that it was cold during the winter. Plaintiff has been transferred
to the Potosi Correctional Center.
Discussion
A plaintiff must “allege and prove something more than different treatment by
government officials” to state an equal protection claim. Batra v. Bd. of Regents of Univ. of
Nebraska, 79 F.3d 717, 721 (8th Cir. 1996). “[T]he key requirement is that plaintiff allege and
prove unlawful, purposeful discrimination.” Id. at 722; see Albright v. Oliver, 975 F.2d 343, 348
(7th Cir.1992) (“you must be singled out because of your membership in the class, and not just
be the random victim of governmental incompetence”), aff'd on other grounds, 510 U.S. 266
(1994); Booher v. United States Postal Serv., 843 F.2d 943, 944 (6th Cir.1988) (“[t]he equal
protection concept does not duplicate common law tort liability by conflating all persons not
injured into a preferred class”); Joyce v. Mavromatis, 783 F.2d 56, 57 (6th Cir.1986) (“[t]he
equal protection argument fails here because the wrong is not alleged to be directed toward an
individual as a member of a class or group singled out for discriminatory treatment”). In this
case, plaintiff has not alleged that he was singled out because of his membership in a protected
class. Therefore, his equal protection claim fails to state a claim upon which relief can be
granted.
In order to determine whether a segregated 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 “do[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

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plaintiff “to 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. The complaint does not allege facts showing an atypical or significant
hardship. As a result, plaintiff has failed to allege that defendants have infringed upon a
constitutionally protected liberty interest, and the complaint will be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B).
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 must pay an initial filing fee of $11
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 without prejudice.
An Order of Dismissal will be filed separately.
Dated this 12th day of April, 2016.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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