Moore v. Heinrich et al

Filing 3

OPINION, MEMORANDUM AND ORDER : ORDERED that plaintiff's request to proceed in forma pauperis is GRANTED. FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $24.92 within thirty (30) days of the date of this Order. FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C.§ 1915(e)(2)(B). An Order of Dismissal will accompany this Memorandum and Order.. Signed by District Judge Henry Edward Autrey on 10/9/14. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
ALVIN MOORE,
Plaintiff,
v.
UNKNOWN HEINRICH, et al.,
Defendants.

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No. 2:14CV72 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the request of plaintiff Alvin Moore (registration no.
1033817), an inmate at Moberly Correctional Center, for leave to commence this action without
payment of the required filing fee.1 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 $24.92. 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

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Plaintiff has not filed a separate motion for leave to proceed in forma pauperis, but he has
requested leave to proceed in forma pauperis in his complaint and submitted the required
certified inmate account statement.

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 $124.58, and an average monthly
balance of $49.00. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $24.92, 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, an inmate at Moberly Correctional Center, brings this action pursuant to 42
U.S.C. § 1983 alleging violations of his civil rights which allegedly occurred during his
incarceration at Northeastern Correction Center (“NECC”).

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Named as defendants are:

Unknown Heinrich (Correctional Officer) and Unknown Niffen (Correctional Officer). Plaintiff
alleges that defendants used excessive force when he refused to “uncuff” during his confinement
in the administrative segregation unit at NECC in December of 2013.
Specifically, plaintiff asserts that he had asked for a change of cell-mate, and when he
was not immediately given a change in cell-mate, he told a correctional officer at NECC that he
was going to sit on a bench until they found him another cell. He states that this was interpreted
to mean that he was refusing to “uncuff” and as a result, defendants Heinrich and Niffen
appeared in plaintiff’s cell and engaged in a struggle with him in order to uncuff him. Plaintiff
complains that as a result of the “shoving” and being harshly “slammed” on a bench, he injured
his back. He claims that the injury exacerbated a prior injury to his back, requiring him to need
steroid injections for treatment.
Plaintiff seeks $500,000.000 in damages from defendants.
Discussion
The complaint is silent as to whether defendants, correctional officers, are being sued in
their official or individual capacities. Where a Acomplaint is silent about the capacity in which
[plaintiff] is suing defendant, [a district court must] interpret the complaint as including only
official-capacity claims.@ Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir.
1995); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989). 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). A[N]either a State nor its officials acting in their official capacity are >persons= under '
1983.@ Id. As a result, the complaint fails to state a claim upon which relief can be granted with
respect to these State of Missouri employees.
Accordingly,

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IT IS HEREBY ORDERED that plaintiff's request to proceed in forma pauperis is
GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $24.92
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 this action is DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 9th day of October, 2014.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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