Martin v. Hurley et al

Filing 7

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Henry L. Martin. Motion is GRANTED.IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.42 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; a nd (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that this action is subject to dismissal pursuant to 28 U.S.C. Section 1915(e)(2)(B) because the complaint is legally frivolous, or fails to state claims against defendants, or both. An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge E. Richard Webber on December 15, 2014. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
HENRY L. MARTIN,
Plaintiff,
v.
JAMES HURLEY, et al.,
Defendants.

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No. 2:14CV00066 ERW

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Henry Martin (registration no.
121289), an inmate at Northeast Correctional Center (“NECC”), for leave to commence this
action without payment of the required filing fee. 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 $1.42. 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 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 $7.08, and an average monthly
balance of $0.00. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $1.42, 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 Complaint
Plaintiff brings this action under 42 U.S.C. § 1983. Named as defendants are James
Hurley (Warden, NECC); Marta Nolin (Assistant Director of Substance Abuse Services); Kathy
Merz (Functional Unit Manager, NECC); Wendy Bryant (Counselor, NECC); Michelle Raine
(Counselor, Gateway); Carrie Wells (Counselor, Gateway); and Whitney Long (Counselor,

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Gateway). Plaintiff alleges that defendants have violated his constitutional rights by removing
him from a substance abuse treatment program. Plaintiff seeks declaratory and injunctive relief
placing him in a substance abuse program in another prison, as well as damages.
Discussion
Plaintiff’s § 1983 claims against the NECC defendants in their official capacities do not
state claims for relief for monetary damages. Naming a government official in his or her official
capacity is the equivalent of naming the government entity that employs the official, in this case
the State of Missouri. Will v. Michigan Dep=t of State Police, 491 U.S. 58, 71 (1989); Barket,
Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 948 F.2d 1084, 1086 (8th Cir. 1991)
(noting that an agency exercising power is not a “person” subject to a § 1983 suit). “[N]either a
State nor its officials acting in their official capacity are ‘persons’ under ' 1983.” Will, 491 U.S.
at 71. As a result, the complaint fails to state claims upon which relief for monetary damages
can be granted against the NECC defendants in their official capacities.
Further, to state a claim against a Gateway employee in his or her official capacity, a
plaintiff must allege that a policy or custom of the employer is responsible for the alleged
constitutional violation. See Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975–76 (8th Cir.
1993) (citing Monell v. Dep’t of Social Services, 436 U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed.
2d 611 (1978)). The amended complaint does not contain any allegations that a policy or custom
of Gateway was responsible for the alleged violation of plaintiff’s constitutional rights. As a
result, the complaint fails to state claims upon which relief for monetary damages against the
Gateway defendants in their official capacities.
Plaintiff claims that his due process rights were violated by his exclusion from the
substance abuse program. Inmates do not have a protected liberty interest in discretionary

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treatment programs, such as a drug abuse treatment program. Persechini v. Callaway, 651 F.3d
802, 807 (8th Cir. 2011). Accordingly, plaintiff fails to state a claim for a due process violation.
To state a claim for medical mistreatment, plaintiff must plead facts sufficient to indicate
a deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Camberos v. Branstad, 73 F.3d 174, 175 (8th Cir. 1995). Allegations of mere negligence in
giving or failing to supply medical treatment will not suffice. Estelle, 429 U.S. at 106. In order
to show deliberate indifference, plaintiff must allege that he suffered objectively serious medical
needs and that defendants actually knew of but deliberately disregarded those needs. Dulany v.
Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). Plaintiff’s claim that his removal from the
substance abuse treatment program constituted deliberate indifference to a serious medical
condition falls well short of the legal standard and is frivolous.
Plaintiff’s retaliation claim against defendant Wells is frivolous. “A prima facie case of
retaliatory discipline requires a showing that: (1) the prisoner exercised a constitutionally
protected right; (2) prison officials disciplined the prisoner; and (3) exercising the right was the
motivation for the discipline.” Meuir v. Greene County Jail Employees, 487 F.3d 1115, 1119
(8th Cir.2007). To succeed on his § 1983 retaliation claim, plaintiff must prove that he engaged
in protected activity and that defendant Wells, to retaliate for the protected activity, took adverse
action against plaintiff that would chill a person of ordinary firmness from engaging in that
activity. See Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004), cert. denied, 546 U.S. 860
(2005). Here, plaintiff alleges that, in an effort to exhaust his administrative remedies, he
confronted defendant Wells as he was coming back from breakfast to try and resolve their
problem before he went to court. He claims that, in retaliation, defendant Wells wrote him up for
creating a disturbance and disobeying an order. Prisoners have no constitutionally protected

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right to confront staff and discuss issues with them, particularly when ordered no to do so.
Accordingly, plaintiff’s retaliation claim is frivolous.
With regard to defendants Hurley and Nolin, in their individual capacities, “[l]iability
under § 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of
rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); 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); Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) (noting that general
responsibility for supervising operations of prison is insufficient to establish personal
involvement required to support liability under § 1983). Further, “the denial of grievances, in
and of itself, cannot support a substantive constitutional claim.” Walls v. Highsmith, 2007 WL
4468694, at *2 (E.D. Mo. Dec.17, 2007) (citing Lomholt v. Holder, 287 F.3d 683, 684 (8th Cir.
2002)). In the instant action, plaintiff has not set forth any facts indicating that defendants
Hurley and Nolin were directly involved in or personally responsible for the alleged violations of
his constitutional rights. As a result, the complaint fails to state claims upon which relief can be
granted against defendants Hurley and Nolin, in their individual capacities.
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 shall pay an initial filing fee of $1.42
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.

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IT IS FURTHER ORDERED that this action is subject to dismissal pursuant to 28
U.S.C. § 1915(e)(2)(B) because the complaint is legally frivolous, or fails to state claims against
defendants, or both.
An Order of Dismissal will accompany this Memorandum and Order.
So Ordered this 15th day of December, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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