Smith v. Smith et al

Filing 6

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff Christopher Gerald Smith. IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis (Docket No. 2) is GRANTED. IT IS FURTH ER ORDERED that plaintiff must pay an initial filing fee of $26.16 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) the statement that the remittance is foran original proceeding. IT IS FURTHER ORDERED that this case is DISMISSED without prejudice. A separate order of dismissal will be entered herewith.IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken ingood faith. (Initial Partial Filing Fee due by 12/27/2017.) Signed by Magistrate Judge Noelle C. Collins on 11/27/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

CHRISTOPHER GERALD SMITH,
Plaintiff,
v.
JIMMY SMITH, et al.,
Defendants.

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No. 1:17-cv-145-NCC

MEMORANDUM AND ORDER

This matter is before the Court on the motion of plaintiff Christopher Gerald Smith for
leave to commence this civil action without prepayment of the required filing fee.

Having

reviewed the motion and the financial information submitted in support, the Court has
determined to grant the motion and assess an initial partial filing fee of $26.16. See 28 U.S.C.
§ 1915(b)(l). In addition, for the reasons discussed below, the Court will dismiss the complaint,
without prejudice.

28 u.s.c. § 1915(b)(l)
Pursuant to 28 U.S.C. § 1915(b)(l), 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
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 his 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 $10.00,
until the filing fee is fully paid. Id.
In support of the instant motion, plaintiff submitted an inmate account statement showing
an average monthly deposit of $130.83, and an average monthly balance of $81.08. The Court
will therefore assess an initial partial filing fee of $26.16, which is twenty percent of plaintiffs
average monthly deposit.

Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), 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, inter alia, draw upon judicial
experience and common sense. Id. at 679.
Pro se complaints are to be liberally construed. Estelle v. Gamble , 429 U.S. 97, 106
(1976). However, they still must allege sufficient facts to support the claims alleged. Stone v.

Harry, 364 F.3d 912, 914-15 (8th Cir. 2004); see also Martin v. Aubuchon, 623 F.2d 1282, 1286
(8th Cir. 1980) (even pro se complaints are required to allege facts which, if true, state a claim
for relief as a matter of law).

Federal courts are not required to "assume facts that are not

alleged, just because an additional factual allegation would have formed a stronger complaint."
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Stone, 364 F.3d at 914-15 . In addition, givmg a pro se complaint the benefit of a liberal

construction does not mean that procedural rules in ordinary civil litigation must be interpreted
so as to excuse mistakes by those who proceed without counsel. See McNeil v. US., 508 U.S.
106, 113 (1993).
The Complaint

Plaintiff is a pretrial detainee at the Dunklin County Justice Center in Kennett, Missouri.
He brings this action pursuant to 42 U.S.C. § 1983 against Jimmy Smith, Nicole Green, Bob
Holder, and the Dunklin County Justice Center. He alleges that "Holder, Smith and Green all
violated his First Amendment right of access to the courts by refusing to install an electronic law
library, thereby frustrating plaintiffs ability to litigate his pending case and bring a new case."
(Docket No. 1 at 3). He states that he "brings a ' Monell' damages policy claim against Dunklin
County Justice Center since this is a policy of the jail." Id. Plaintiff claims that the jail does not
provide the books "'Prisoner's Self Help Litigation Manual,' 'Jailhouse Lawyer' s Manual,' etc."
Id. He states he is proceeding prose in the case Smith v. Holder, et al. , Case No. 1:17-cv-117-

RWS (E.D. Mo. Jul. 24, 2017), and "wants to file an Amended Complaint" but "needs access to
an electronic law library to conduct the necessary legal research." Id. He also states that he
"wants to file another lawsuit to challenge the conditions of his confinement, but is being
' frustrated and impeded from doing so because he has no legal materials, case law, etc." (Docket
No. 1at3).
Discussion

Under the First Amendment, the freedom to petition includes the right of access to courts.
See BE & K Const. Co. v. N L.R.B. , 536 U.S. 516, 525 (2002). The Due Process clause of the

Fourteenth Amendment makes the First Amendment applicable to the states. Republican Party
of Minnesota v. White , 416 F.3d 738, 748 (8th Cir. 2005) (citations omitted).
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In Bounds v. Smith, the Supreme Court held that the right of access to the courts requires
that inmates be provided adequate law libraries or adequate assistance from persons trained in
the law. 430 U.S . 817. Following Bounds, the Supreme Court held, based on principles of
standing, that an inmate alleging a Bounds violation must show an actual injury:
Because Bounds did not create an abstract, freestanding right to a law library or
legal assistance, an inmate cannot establish relevant actual injury simply by
establishing that his prison' s law library or legal assistance program is subpar in
some theoretical sense. That would be the precise analog of the healthy inmate
claiming constitutional violation because of the inadequacy of the prison
infirmary. Insofar as the right vindicated by Bounds is concerned, "meaningful
access to the courts is the touchstone," and the inmate therefore must go one step
further and demonstrate that the alleged shortcomings in the library or legal
assistance program hindered his efforts to pursue a legal claim.

Lewis v. Casey, 518 U.S. 343 , 351 (1996) (internal citations omitted).
The Eighth Circuit has recognized that, when bringing an access to courts claim, it is
insufficient to merely allege a denial of access to a law library or other resources, even if the
denial is systemic. Sabers v. Delano, 100 F.3d 82, 84 (8th Cir. 1996) (per curiam) (citing Lewis,
518 U.S. 343). Instead, the plaintiff must plead (and ultimately prove) that the lack of the library
or other resource deprived him of some specific opportunity to defend himself, or advance a
viable legal claim, in a criminal appeal, postconviction matter, or civil rights action. Id. "Absent
an articulation of how the alleged wrongful conduct actually blocked [the prisoner' s] access to
filing a complaint, or caused a filed complaint to be deficient, [the prisoner' s] alleged injuries are
merely speculative." Hartsfield v. Nichols, 511 F.3d 826, 833 (8th Cir. 2008).
In the case at bar, plaintiff fails to allege an actual injury with regard to his pending
litigation. He cites the case, Smith v. Holder, et al. , Case No. 1:17-cv-117-RWS (E.D. Mo. Jul.
24, 2017) and states, in conclusory fashion, that he cannot file an amended complaint due to the
lack of an electronic law library or certain legal books. Plaintiff does not articulate how the
alleged deficiencies are blocking his ability to file an amended complaint, nor does he allege that
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the deficiencies caused his filed complaint to be deficient. In fact, in Smith v. Holder, et al.,
plaintiffs complaint survived initial review, the defendants were served with process, they
answered the complaint, and a case management order was entered. Also, plaintiff has filed
multiple motions in the case seeking various forms of relief, which belies his claim that his
access to the court has been thwarted. See Brown v. Voorhies, 2012 WL 748403, *7 (S.D. Ohio
Mar. 8, 2012) ("[t]he sheer number of filings that Plaintiff has been able to muster belies his
claim that access to the Court has been thwarted.").
Plaintiff also fails to allege an actual injury with regard to anticipated litigation. Plaintiff
does not articulate how the alleged deficiencies are blocking his ability to file another civil rights
lawsuit. In addition, the case at bar is the third of four civil rights lawsuits plaintiff has filed
since July 2017, while detained at the Dunklin County Justice Center. 1 This litigation history
belies plaintiffs conclusory statement that his access to the courts is being thwarted.

See

Anderson v. Tallerico, 2013 WL 3329830, *3 (E.D. Cal. Jul. 1, 2013) ("the sheer number of

cases Plaintiff has pending in this Court belies" his claim that his access to the courts was
thwarted); Boone v .Chesney, 1994 WL 477670, *4 (E.D. Penn. Sep. 2, 1994) ("the sheer number
of cases filed within the past year by Boone (3) belies his claim that his access to courts has been
infringed.").

The Constitution requires access to courts, not electronic law libraries or specific

legal books, and it is clear that plaintiff has access to the courts.
The Court concludes that plaintiffs alleged injuries regarding his pending case and his
anticipated litigation are merely speculative.

See Hartsfield, 511 F.3d at 833 ("[a]bsent an

articulation of how the alleged wrongful conduct actually blocked [the prisoner's] access to
filing a complaint, or caused a filed complaint to be deficient, [the prisoner's] alleged injuries are

1

See Smith v. Holder, et al., Case No. 1:17-cv-117-RWS (E.D. Mo. Jul. 24, 2017), Smith v. Green, et al. , Case No.
1: 17-cv-144-JMB (E.D. Mo. Aug. 28, 2017), and Smith v. Green, et al., Case No. I: 17-cv-154-NAB (E.D. Mo. Sep.
1, 2017).

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. ..
merely speculative."). In setting forth his claims, plaintiff merely pleads legal conclusions and
the "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements" that the Supreme Court has found deficient, Iqbal, 556 U.S. at 678, and
this Court will not assume facts that plaintiff has not alleged. See Stone , 364 F.3d at 914-15 .
The Court concludes that the complaint fails to state a claim upon which relief can be granted,
and will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
Accordingly,

IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma
pauperis (Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $26.16
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) the statement that the remittance is for
an original proceeding.

IT IS FURTHER ORDERED that this case is DISMISSED without prejudice. A
separate order of dismissal will be entered herewith.

IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this 27th day of November, 2017.

STEPfIENiiIMlfAUGH,J".'°'
UNITED STATES DISTRICT JUDGE

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