Bader v. Keefe Supply Company et al

Filing 7

MEMORANDUM AND ORDER re: 4 MOTION for Preliminary Injunction filed by Plaintiff Kyle J. Bader, 3 MOTION to Appoint Counsel filed by Plaintiff Kyle J. Bader, 2 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff Kyle J. Bader. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis (Docket No. 2) is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 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) this case number; and (4) the statement that the remittance is for an orig inal proceeding. IT IS FURTHER ORDERED that this case is DISMISSED without prejudice. A separate order of dismissal will be entered herewith. IT IS FURTHER ORDERED that plaintiff's motion for preliminary injunction (Docket No. 4) is DENIED. IT I S FURTHER ORDERED that plaintiff's motion to appoint counsel (Docket No. 3) is DENIED as moot. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. (Initial Partial Filing Fee due by 8/13/2018.) Signed by District Judge Rodney W. Sippel on 7/12/18. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
KYLE J. BADER,
Plaintiff,
v.
KEEFE SUPPLY COMPANY, et al.,
Defendants.

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No. 1:18-cv-115-RWS

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff Kyle J. Bader, a prisoner, 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 $1.00. See 28 U.S.C.
§ 1915(b)(1). In addition, for the reasons discussed below, the Court will dismiss the complaint,
without prejudice.
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
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
$10.00, until the filing fee is fully paid. Id.
In support of the instant motion, plaintiff states that he has tried unsuccessfully to obtain
a copy of his inmate account statement. He also states that he received some money to purchase
commissary items. The Court will therefore assess an initial partial filing fee of $1.00, an
amount that is reasonable based upon the information before the Court. See Henderson v.
Norris, 129 F.3d 481, 484 (8th Cir. 1997) (when a prisoner is unable to provide the Court with a
certified copy of his prison account statement, the Court should assess an amount “that is
reasonable, based on whatever information the court has about the prisoner’s finances.”).
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, 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 “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989).
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, 46163 (E.D. N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987). An action fails to state a claim upon
which relief can be granted if it does not plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To determine whether an action fails to state a claim upon which relief can be granted,
the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the
complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). These include “legal conclusions” and “[t]hreadbare recitals of the elements of a cause
of action [that are] supported by mere conclusory statements.” Id. at 678. Second, the Court
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must determine whether the complaint states a plausible claim for relief. Id. at 679. This is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id.
The plaintiff is required to plead facts that show more than the “mere possibility of
misconduct.” Iqbal, 556 U.S. at 679. The Court must review the factual allegations in the
complaint “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. When
faced with alternative explanations for the alleged misconduct, the Court may exercise its
judgment in determining whether plaintiff’s proffered conclusion is the most plausible or
whether it is more likely that no misconduct occurred. Id. at 680-82.
Pro se complaints are to be liberally construed, Estelle v. Gamble, 429 U.S. 97, 106
(1976), but they still must allege facts which, if true, state a claim for relief as a matter of law.
Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980).

The Court must weigh all factual

allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v.
Hernandez, 504 U.S. 25, 32 (1992). Federal courts are not required to “assume facts that are not
alleged, just because an additional factual allegation would have formed a stronger complaint.”
Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004).
The Complaint
Plaintiff states that he brings this action on behalf of himself “and all others similarly
situated” against thirteen defendants: Keefe Supply Company, Sheriff John Jordan, Captains
James P. Mulcahy and Ruth Ann Dickerson, Commissary Supervisor Unknown Rhea, the City of
Jackson, Missouri, Cape Girardeau County, the Mayor of Jackson, Missouri, Lieutenant
Unknown Davis, Prosecuting Attorney Christopher K. Limbaugh, and Judges Michael Gardner,
Albert Camp and Unknown Lewis.

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At the time plaintiff filed the instant complaint, he was incarcerated in the Cape
Girardeau County Jail (“Jail”). All of plaintiff’s claims stem from the pricing of goods in the
Jail’s commissary, the fact that inmates are required to pay sales tax on commissary purchases,
and the practice of requiring the family members of inmates to pay deposit fees. Plaintiff sets
forth numerous claims that these practices violate rights guaranteed by the United States
Constitution, and that they also violate various federal and state laws. In sum, plaintiff alleges
that items are sold in the commissary for prices that are much higher than local stores (such as
Wal-Mart) charge members of the public for the same item. Plaintiff alleges that all of the
defendants engaged in a massive civil conspiracy in violation of federal and state law to unjustly
enrich themselves at the expense of inmates. He states he brings a Monell claim against the City
of Jackson, Missouri and against Cape Girardeau County and defendants Lewis, Gardner, Camp,
Limbaugh, Jordan, and the Mayor of Jackson, Missouri for having a policy of illegally charging
sales tax on commissary and of charging unjust and oppressive commissary prices. Plaintiff also
states he brings state law claims of unjust enrichment, fraud, conversion, and price
discrimination, he states he brings a RICO claim against Keefe and other defendants, he states
the defendants violated his right to equal protection, and he references the Clayton Act and the
Robinson-Patman Act. He seeks monetary and injunctive relief.
Discussion
As an initial matter, the Court will dismiss all claims plaintiff is attempting to bring on
behalf of anyone other than himself. Plaintiff lacks standing to bring claims on behalf of others,
and he does not allege, nor is it apparent, that he is a licensed attorney. Only a licensed attorney
may represent another party in federal court. See 28 U.S.C. § 1915(e)(2)(B); Lewis v. Lenc–

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Smith Mfg. Co., 784 F.2d 829, 830 (7th Cir. 1986) (a person who is not licensed to practice law
may not represent another individual in federal court).
To the extent plaintiff attempts to bring a § 1983 claim against any defendant for
overcharging for commissary items, charging sales tax, charging deposit fees, or violating
Missouri law, such attempt fails. To state a claim under 42 U.S.C. § 1983, plaintiff must allege,
inter alia, the violation of a federally-protected right. West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff does not have a federally-protected right to commissary privileges or commissary
pricing, and he certainly has no legal basis to demand he be allowed to purchase commissary
goods tax-free.1 If a jail voluntarily sets up a commissary or provides for commissary services,
there is no federal requirement that the commissary items be sold at or near the price that a
member of the public would pay for the same item. See LaPlante v. Lovelace, 2013 WL
5572908 at *11 (W.D. Mich. Oct. 9, 2013) (“Federal courts consistently have held that prisoners
have no right to purchase products at regular retail prices.”). Similarly, plaintiff’s allegations
that the defendants violated Missouri law fail to state a claim under § 1983. See Williams v.
Hopkins, 130 F.3d 333, 337 (8th Cir. 1997) (alleged violation of state law does not by itself state

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See Poole v. Stubblefield, 2005 WL 2290450, at *2 (E.D. Mo. Sept. 20, 2005); see also Bright v.
Thompson, 2011 WL 2215011, at *4 (W.D. Ky. June 6, 2011) (inmate has no federal constitutional right
to purchase items from a commissary at a certain price and without tax); Vega v. Rell, 2011 WL 2471295,
at *25 (D. Conn. June 21, 2011) (inmates have no constitutional right to purchase items from a prison
commissary, and the Court can discern no federal law that is violated by requiring inmates to pay state
sales tax on their purchases); Boyd v. Lasher, 2010 WL 444778, at *2 (E.D. La. Feb. 8, 2010) (inmate’s
claims of being overcharged for commissary purchases and taxed without representation fail to state a
claim of violation of constitutional rights cognizable under § 1983); Verrette v. Randolph, 2009 WL
103715, at *9 (E.D. La. Jan. 14, 2009) (collection of state taxes on prison commissary purchases does not
violate plaintiff's constitutional rights); Tolbert v. City of Montgomery, 2008 WL 819067, at *1 (M.D.
Ala. Mar. 25, 2008) (inmates have no constitutionally-protected interest in purchasing goods available
through the prison commissary, let alone a protected interest in not paying the tax associated with making
purchases; such a claim is “patently absurd”); McCall v. Keefe Supply Co., 71 F.App’x 779, 780 (10th
Cir. 2003) (inmate’s claim that commissary charged outrageous prices failed to state a constitutional
claim); Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (“[T]he fact that prisoners retain rights under the
Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the
nature of the regime to which they have been lawfully committed.”).

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claim redressable in a § 1983 action); Richard v. Cupp, 2009 WL 840218, at *5 (W.D. La. Mar.
25, 2009) (prisoner’s contention that commissary’s collection of sales tax violates Louisiana law
fails to state a claim for which relief may be granted under § 1983).
Plaintiff also states that his right to equal protection was violated. However, he does not
allege that he was treated differently from anyone similarly situated to him. In fact, the allegedly
wrongful conduct of which plaintiff complains affects one group of people, namely inmates at
the Jail, all of whom are treated in the same manner. To the extent plaintiff can be understood to
argue that prisoners are a protected class, such argument fails. Murray v. Dosal, 150 F.3d 814,
818 (8th Cir. 1998) (prisoners are not a protected class).
Plaintiff also states that he brings a civil conspiracy claim under § 1983. To plead a §
1983 claim for conspiracy, a plaintiff must allege, inter alia, the deprivation of a constitutional
right or privilege. Burton v. St. Louis Bd. of Police Com’rs., 731 F.3d 784, 798 (8th Cir. 2013)
(quoting White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008)). As noted above, however,
plaintiff has failed to allege the violation of a federally-protected right. He therefore fails to state
a § 1983 conspiracy claim. Plaintiff’s Monell claim fails for this same reason, as there can be no
claim against any defendant for any policies, practices or customs leading to the violation of a
federally-protected right.
Plaintiff also states he brings a RICO claim against all of the defendants. To state a civil
RICO claim, plaintiff must plead, inter alia, that the defendants engaged in a pattern of
racketeering activity. Wisdom v. First Midwest Bank of Poplar Bluff, 167 F.3d 402, 406 (8th
Cir. 1999) (citation omitted). The term “racketeering activity” includes a variety of criminal
offenses under state and federal law, including murder, kidnaping, gambling, arson, robbery,
bribery, extortion, and obstruction of justice. 18 U.S.C. § 1961(1). Here, plaintiff states, in a

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wholly conclusory manner, that the defendants bribed local officials, and he speculates this was
done in order to gain a monopoly over the prison goods market and to keep inmates incarcerated
for longer periods of time. Merely conclusory or speculative statements are insufficient to
adequately plead the requisite predicate acts. See Iqbal, 556 U.S. at 678; see also Peterson v.
Shansk, 149 F.3d 1140, 1145 (10th Cir. 1998) (for predicate acts, plaintiff must plead more than
conclusory allegations). Plaintiff also alleges that the defendants overcharged for commissary
goods, illegally charged sales tax, and charged commissary deposit fees. These allegations do
not describe criminal offenses that are included in the definition of racketeering activity.
Plaintiff also references the Clayton Act and the Robinson-Patman Act.2 However, for an
action to lie under the Robinson-Patman Act, there must be evidence of unfair price
discrimination between competitors. Here, plaintiff does not explain, nor is it apparent, how any
defendant engaged in anticompetitive practices.
Along with the complaint, plaintiff filed a motion for preliminary injunction, asking the
Court to enjoin the defendants from charging unjust commissary prices, engaging in
racketeering, or charging sales tax on commissary purchases. As explained above, plaintiff is
not entitled to relief on such claims. The motion will therefore be denied.
Finally, because plaintiff’s federal claims will be dismissed, the Court will also dismiss
all remaining pendent state law claims. See 28 U.S.C. § 1367(c)(3).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
(Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $1.00 within
thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to
2

The latter is an amendment to the former.

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“Clerk, United States District Court,” and to include upon it: (1) his name; (2) his prison
registration number; (3) this 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 FURTHER ORDERED that plaintiff’s motion for preliminary injunction (Docket
No. 4) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Docket No. 3)
is DENIED as moot.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this 12th day of July, 2018.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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