Turner v. Hurley et al

Filing 6

MEMORANDUM AND ORDER. (See Full Order.) 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 must pay an initial filing fee of $1.70 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 IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. An Order of Dismissal will be filed separately. Signed by District Judge Catherine D. Perry on 6/6/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
TERRY M. TURNER,
Plaintiff,
v.
JAMES HURLEY, et al.,
Defendants.

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No. 2:16-CV-29 CDP

MEMORANDUM AND ORDER
Plaintiff, a prisoner at the Northeast Correctional Center (“NECC”), seeks leave to
proceed in forma pauperis in this civil action under 42 U.S.C. § 1983 and state law. Having
reviewed plaintiff’s financial information, the Court assesses a partial initial filing fee of $1.70,
which is twenty percent of his average monthly deposit. See 28 U.S.C. § 1915(b).
Standard of Review
Under 28 U.S.C. § 1915(e), 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 draw on its judicial experience and
common sense. Id. at 679.
The Complaint
Plaintiff brings this action against James Hurley, Warden of NECC; Unknown
Christensen, Captain; and John or Jane Doe. Plaintiff alleges that in April 2016 Christensen
ordered John or Jane Doe to remove plaintiff’s legal materials from his cell. These included
pleadings, medical records, and exhibits. Plaintiff says that Hurley “failed to take corrective
actions.”

Plaintiff does not allege that he missed any court deadlines or was otherwise

prejudiced in an active court case.
Discussion
“To state a claim [for denial of meaningful access to the courts], inmates must assert that
they suffered an actual injury to pending or contemplated legal claims.” Myers v. Hundley, 101
F.3d 542, 544 (8th Cir. 1996). Because plaintiff has not made any such allegations, his § 1983
claim fails to state a claim upon which relief can be granted.
Because plaintiff’s federal claims will be dismissed, all remaining pendent state claims
should be dismissed as well. See 28 U.S.C. § 1367(c)(3); United Mine Workers v. Gibbs, 383
U.S. 715, 726 (1966) (if federal claims are dismissed before trial, remaining state claims should
also be dismissed); Hassett v. Lemay Bank & Trust Co.,851 F.2d 1127, 1130 (8th Cir. 1988)
(where federal claims have been dismissed, district courts may decline jurisdiction over pendent
state claims as a “matter of discretion”).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.

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IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $1.70
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.1
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice.
An Order of Dismissal will be filed separately.
Dated this 6th day of June, 2016.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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Prisoners must pay the full amount of the $350 filing fee. 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. The agency having custody of the prisoner will deduct the payments and forward them to the
Court each time the amount in the account exceeds $10. 28 U.S.C. § 1915(b)(2).

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