Hemingway v. Berry et al

Filing 9

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's motion for order from the Court to provide an inmate account statement [Doc. #3] is DENIED AS MOOT. IT IS FURTHER ORDERED that Plaintiffs motion to amend his complaint [Doc. #6] is GRANTED. IT IS FURTHER ORDERED that Plaintiff shall pay an initial filing fee of $1.70 within thirty (30) days of the date of this Order. IT IS FUR THER ORDERED that if Plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice.IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to Defendant Timothy Holsten in his individual capacity. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to Marc Berry because, as to this Defendant, the com plaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that this case is assigned to Track 5: Prisoner Standard( Initial Partial Filing Fee due by 9/7/2017.). Signed by District Judge Audrey G. Fleissig on 8/8/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
LAMON TANEAL HEMINGWAY,

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Plaintiff,
v.
MARC BERRY, et al.,
Defendants.

No. 1:17-CV-0021 AGF

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Lamon Taneal Hemingway
(registration no.1101853), an inmate at Southeast Correctional Center, for leave to commence
this action without payment of the required filing fee [Doc. # 2] and for leave to file an amended
complaint [Doc. #6]. For the reasons stated below, the Court finds that the plaintiff does not
have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of
$1.70.

See 28 U.S.C. § 1915(b)(1).

Furthermore, upon review of the complaint and first

amended complaint, the Court will grant Plaintiff’s motion for leave to amend the complaint and
order the Clerk to issue process or cause process to be issued on the amended complaint.
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 $8.50. Accordingly, the Court will
assess an initial partial filing fee of $1.70, 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 Amended Complaint
Plaintiff, an inmate at SECC, brings this action pursuant to 42 U.S.C. § 1983, alleging
violations of his civil rights. In his motion for leave to file a first amended complaint, Plaintiff
states that his original complaint contains claims that are related to another action before the
Court. In an effort to avoid duplicity, Plaintiff seeks to amend his complaint to the first plausible

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claim Plaintiff made in his complaint and drop all parties except Defendant Timothy Holsten.
However, in his amended complaint, Plaintiff names as Defendants Marc Berry, Correctional
Officer (“SECC”) and Timothy Holsten, Case Manager (“SECC”). Plaintiff sues Defendants in
their individual capacities.
Plaintiff states that after he received two conduct violations on “previous days,” his Case
Manager, Timothy Holsten “teamed him,” or set up a hearing related to his conduct violations.
The hearing was set for January 5, 2017. Plaintiff told Holsten that he had been on suicide watch
from December 3, 2016 and on property removal during that time period and, as a result, he had
not received a copy of either of the conduct violations. Plaintiff alleges that he asked Holsten to
delay his hearing until he was able to have “due process” for the violations, or he was able to
have copies of the violation reports. Plaintiff claims that Holsten denied his requests.
Plaintiff further alleges that Holsten wrote a false statement on one of the conduct
violation reports, attributed to plaintiff. Plaintiff believes Holsten wrote the false statement
because Plaintiff has been, and is continuing to, file complaints against Defendant Holsten.
Plaintiff claims that Holsten charged him for damage to a mattress and a sprinkler. He
asserts that although he did damage the sprinkler, he did not damage the mattress. He states that
he asked Holsten to review the documentary evidence relating to how the mattress was already
damaged when he entered the cell, but Holsten refused to do so, in retaliation for Plaintiff’s prior
complaints against him. Plaintiff has not made any allegations against Defendant Marc Berry in
the amended complaint. Plaintiff seeks monetary damages and injunctive relief.
Discussion
After reviewing the complaint in its entirety, as well as the proposed amended complaint,
the Court will order the Clerk to issue process or cause process to issue on Plaintiff’s claims of
retaliation and due process violations against Timothy Holsten in his individual capacity.

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Plaintiff, however, has not made a direct claim against Marc Berry. As a result, Defendant Berry
will be dismissed from this lawsuit. Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990)
(ALiability under § 1983 requires a causal link to, and direct responsibility for, the alleged
deprivation of rights.@); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim
not cognizable under § 1983 where plaintiff fails to allege defendant was personally involved in
or directly responsible for incidents that injured plaintiff).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's motion to proceed in forma pauperis [Doc.
#2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion for order from the Court to provide
an inmate account statement [Doc. #3] is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff’s motion to amend his complaint [Doc. #6]
is GRANTED.
IT IS FURTHER ORDERED that Plaintiff shall pay an initial filing fee of $1.70 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 if Plaintiff fails to pay the initial partial filing fee
within thirty (30) days of the date of this Order, then this case will be dismissed without
prejudice.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to
issue upon the complaint as to Defendant Timothy Holsten in his individual capacity. Defendant

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is an employee of the Missouri Department of Correctional and shall be served through the
waiver agreement the Court maintains with the Missouri Attorney General’s Office.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), Defendant
Timothy Holsten shall reply to Plaintiff's claims within the time provided by the applicable
provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the complaint as to Marc Berry because, as to this Defendant, the complaint is legally
frivolous or fails to state a claim upon which relief can be granted, or both.
IT IS FURTHER ORDERED that this case is assigned to Track 5: Prisoner Standard.
An Order of Partial Dismissal will accompany this Memorandum and Order.
Dated this 8th day of August, 2017.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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