Williams v. Prudden
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $19.20 within thirty (30) days of the date of thi s 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 proc eeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. An Order of Dismissal will accompany this Memorandum and Order. Signed by Honorable Audrey G. Fleissig on 4/21/11. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DOUGLAS J. PRUDDEN, et al.,
No. 2:10CV81 AGF
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
1133426), an inmate at Northeast Correctional Center, for leave to commence this
action without payment of the required filing fee [Doc. #2]. 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 $19.20. 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 six-month 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
$96.00, and an average monthly balance of $28.11. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $19.20, 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 “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, 461-63
(E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987).
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, 129 S. Ct. 1937, 1950-51 (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 1949. Second, the Court must determine whether the
complaint states a plausible claim for relief. Id. at 1950-51. This is a “context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 1950. The plaintiff is required to plead facts that show more than the
“mere possibility of misconduct.” Id. The Court must review the factual allegations
in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id.
at 1951. When faced with alternative explanations for the alleged misconduct, the
Court may exercise its judgment in determining whether plaintiff’s conclusion is the
most plausible or whether it is more likely that no misconduct occurred. Id. at 1950,
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his
civil rights. Named as defendants are: Douglas Prudden (Warden); Ellis McSwain
(Missouri Board of Probation and Parole); Jay Nixon (Governor); and the Missouri
Department of Corrections (“MDOC”).
In his lawsuit for monetary damages and injunctive relief, plaintiff complains
about the extension of his conditional release date, or the denial of good time credits
for failure to complete a rehabilitative program.
Specifically, plaintiff disagrees with the mandate espoused in Mo.Rev.Stat. §
589.040, which requires persons who have been convicted of sexual offenses to attend
a Missouri Sexual Offender Treatment Program. Plaintiff asserts that when he
exercised his right to appeal his conviction for sexual assault, he wasn’t immediately
allowed to enter the treatment program because he refused to accept responsibility for
his actions. Thus, plaintiff complains that immediate compliance with § 589.040 during
the beginning of incarceration would essentially require an inmate to waive his rights
Essentially, plaintiff claims that as a result of availing himself of the appellate
process, his conditional release date was extended and he was moved to a “higher level
prison” because he “failed to complete the Missouri Sex Offender Program.”
Where a state prisoner seeks damages and declaratory relief in an action
challenging the validity of procedures used to deprive him of good-time credits or
which otherwise affect his out-date, and the challenge to the procedures necessarily
implies that the punishment imposed was invalid (i.e., necessarily implies that the
denial of good-time credits was invalid), the claim is not cognizable under 42 U.S.C.
§ 1983. Edwards v. Balisok, 520 U.S. 641, 646 (1997).
To challenge his state conviction or sentence in federal court, plaintiff must
petition for a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 501 (1973);
see also Overton v. Luebbers, 2008 WL 565769, *1 (E.D. Mo. February 28, 2008)
(stating that a writ of habeas corpus under 28 U.S.C. § 2241 is the proper vehicle for
challenging a decision of the Parole Board relating to a denial of conditional release for
failure to participate in a sexual offender treatment program). Before seeking federal
habeas relief, plaintiff must exhaust all adequate and available state court remedies. 28
U.S.C. § 2254(b)(c); Rose v. Lundy, 455 U.S. 509 (1982); Powell v. Wyrick, 657 F.2d
222 (8th Cir.1981). The state courts must have an opportunity to review the merits of
plaintiff's contentions and must be given primary responsibility in their own criminal
cases. Fay v. Noia, 372 U.S. 391 (1963); Tyler v. Swenson, 527 F.2d 877 (8th
Moreover, the Court notes that inmates do not have a liberty interest in
conditional release. Greenholtz v. Inmates of Neb. Penal Corr. Complex, 442 U.S. 1,
7 (1979) (“there is no constitutional inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence”). Inmates only have
a constitutional liberty interest in conditional release if such an interest is created by
state statute. Id. Missouri does not by statute create a liberty interest in conditional
release. Adams v. Agniel, 405 F.3d 643, 644 (8th Cir.2005); Johnson v. Missouri Bd.
of Prob. & Parole, 92 S.W.3d 107, 113-14 (Mo.App.2002); Dace v. Mickelson, 816
F.2d 1277, 1280-81 (8th Cir.1987). Because Missouri inmates have no liberty interest
in conditional release, they also have no liberty interest in any condition or conditions
imposed as a part of their grant of conditional release. See Patterson v. Webster, 760
F.Supp. 150, 153 (E.D.Mo.1991) (because no liberty interest in conditional release, no
procedural protections attach to the conditions imposed by the Parole Board). Further,
even if the condition imposed on plaintiff's parole violated state law or the institutional
policies and procedures of the Missouri Department of Corrections, plaintiff has no
liberty interest in defendants following such state law, policies or procedures. Phillips
v. Norris, 320 F.3d 844, 847 (8th Cir.2003) (citing Kennedy v. Blankenship, 100 F.3d
640, 643 (8th Cir.1996)). As such, plaintiff's allegations fail to state a claim upon
which relief may be granted.
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of
$19.20 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 the Clerk shall not issue process or cause
process to issue upon the complaint because the complaint is legally frivolous or fails
to state a claim upon which relief can be granted, or both.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 21st day of April, 2011.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?