Yount v. Long et al

Filing 6

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that pltff.'s 2 MOTION for Leave to Proceed in forma pauperis is granted. IT IS FURTHER ORDERED that the pltff. shall pay an initial filing fee of $8.18 within 30 days of the date of this order. Pl tff. is instructed to make his remittance payable to Clerk USDC 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 cl erk 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 appropriate order of dismissal shall accompany this memorandum and order. ( Initial Partial Filing Fee due by 1/11/2009.). Signed by Honorable Jean C. Hamilton on 12/11/08. (CLA)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION SHAWN WILLIAM YOUNT, Plaintiff, v. STEVE LONG, et al., Defendants. ) ) ) ) ) ) ) ) )

No. 4:07-CV-1657-FRB

MEMORANDUM AND ORDER This matter is before the Court upon the motion of Shawn William Yount (registration no. 167218), an inmate at Southeast 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 $8.18. 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 $40.92, and an average monthly balance of $.65. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $8.18, 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 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 action under 42 U.S.C. § 1983 seeking injunctive relief for violations arising out of his parole revocation proceeding. Named as defendants are Steve Long (Chairman,

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Missouri Board of Probation and Parole), Charles Buerck (District Administrator of Probation and Parole), Jeanne S. Larkins (parole officer), Ron McCroy (parole officer), Fannie B. Gaw, Wayne Crump, Robert L. Robinson, Penny V. Hubbard, Reid K. Forrester, and Ansel Card. Plaintiff alleges that he was not "made aware of some of the allegations" that resulted in his parole revocation until "[a]fter the hearing," and thus, his "return to the Department of Corrections was unauthorized." He further alleges that the reports used to determine [his] parole revocation were unsigned [and] therefore invalid." Plaintiff states that "[o]n 8-29-08 [he] sent the parole board [his] appeal" and that the board is "supposed to respond to the appeal withing 30 days or as soon as possible." After fiftyfive days had passed and he still had not received a ruling on his appeal, plaintiff filed the instant § 1983 action. For relief, plaintiff requests this Court to order the Missouri Board of Probation and Parole to grant him an immediate hearing to determine his parole status. Discussion At the outset, the Court notes that the complaint is silent as to whether defendants are being sued in their official or individual capacities. Where a "complaint is silent about the capacity in which [plaintiff] is suing defendant, [a district court must] interpret the complaint as including only officialcapacity 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). "[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.

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Accordingly, 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 $8.18 within thirt y (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 appropriate order of dismissal shall accompany this Memorandum and Order. Dated this 11th Day of December, 2008.

/s/ Jean C. Hamilton UNITED STATES DISTRICT JUDGE

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