Phillips v. Freeman et al

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis 2 is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $12.42 within thirty (30) days of the date of this Order (Initial Partial Filing Fee due by 12/11/2017). 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. Signed by District Judge Rodney W. Sippel on 11/9/2017. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
BRANDON C. PHILLIPS
Plaintiff,
v.
GARY FREEMAN, et al.,

Defendants.

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No. 2:17-CV-38 RWS

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Brandon C. Phillips (registration no.
1117250), an inmate at Northeast Correctional Center, 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 $12.42. 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 $62.08. Plaintiff has insufficient
funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$12.42, which is 20 percent of plaintiff's average monthly deposits.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may 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 against a defendant who is immune from such relief. An action
is frivolous if “it lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S.
319, 328 (1989). 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, 127 S. Ct. 1955, 1974 (2007).
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint
the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court
must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly
baseless. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Scheuer v. Rhodes, 416 U.S. 232,
236 (1974).
The Complaint
Plaintiff brings this civil rights action against various officials at the Maryville Treatment
Center (“MTC”), alleging violations of his constitutional rights arising out of his termination
from the drug treatment program. MTC is a substance abuse treatment facility within the

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Missouri Department of Corrections (“MDOC”). It is considered a minimum security institution,
and is a therapeutic alternative to incarceration in prison. MTC provides long and short term
substance abuse treatment.1
Had plaintiff successfully completed the drug treatment program at MTC, he would have
been eligible for a release date of August 3, 2017. Plaintiff alleges the officials violated his
constitutional rights by not affording him the due process right to confront an anonymous
informant before finding him guilty of possessing the synthetic drug “K2.” In addition, he states
he was not allowed to see any documentation regarding the investigation; no substance was ever
recovered from him; he never tested positive for any substances; and the violation was issued
with no physical, video, or corroborative evidence outside of the anonymous informant’s
statement.
For relief, plaintiff seeks an award of $500.00 per day from October 13, 2016 to the
present because the alleged violation of his rights cost plaintiff his treatment and release date.2
Discussion
To prevail on his § 1983 claim, plaintiff must first establish he was deprived of a
protected liberty interest. The Eighth Circuit has held that there is no protected liberty interest in
a sentence reduction that may be granted upon completing a drug treatment program in MDOC.
See Persechini v. Callaway, 651 F.3d 802, 807 (8th Cir. 2011) (affirming denial of Missouri state
prisoner’s § 1983 action against prison officials for alleged deprivation of due process rights by
terminating him from substance abuse program); see also Staszak v. Romine, 221 F.3d 1344 (8th
Cir. 2000) (per curiam) (unpublished table decision) (finding plaintiff who failed drug abuse
treatment program had no liberty interest in provisional release date and suffered no due process

1

See Missouri Department of Corrections, https://doc.mo.gov/DORS/ (last visited Nov. 7, 2017).
In his paragraph titled “relief,” plaintiff asks for $100.00 per day, but in his paragraph titled
“money damages” he seeks $500.00 per day. The Court will refer to the higher amount.
2

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violations as a result of rescission). Citing the Supreme Court’s decision in Greenholtz v.
Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979), the Eighth
Circuit held that a Missouri inmate does not have a protected liberty interest in the discretionary
probationary release to which he might be eligible if he successfully completes MDOC’s drug
treatment program. Persechini, 651 F.3d at 808; see also Adams v Agniel, 405 F.3d 643, 645
(8th Cir. 2005) (“[A]n inmate does not have a constitutionally-protected liberty interest in the
possibility of parole, and [the United States Court of Appeals for the Eighth Circuit] has held that
the Missouri parole statutes ‘create no liberty interest’ under state law in the parole board's
discretionary decisions.”) (citing Greenholtz, 442 U.S. at 9-11).3
Plaintiff “acknowledges that parole is a privilege, and that all [early release] dates are
considered presumptive, thus they are not guaranteed.” Because plaintiff cannot establish that
his termination from MTC’s drug treatment program violated a liberty interest for due process
purposes, he cannot prevail on his § 1983 claim. The Court need not consider whether MTC’s
procedures for terminating plaintiff from the treatment program were constitutional. Plaintiff is
not entitled to relief in this action, and the Court will dismiss the complaint, without prejudice,
under § 1915(e)(2)(B).
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 $12.42
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
3

The same is not true for inmates convicted of a crime in prison and subjected to additional
punishment. “[I]nmates who have been duly convicted of a crime may not be subjected to
additional punishment, not contemplated in their sentence of imprisonment, without due process
of law.” Jones v. Mabry, 723 F.2d 590, 594 (8th Cir. 1983).
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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.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 9th day of November, 2017.

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