Abdul-Khaliq v. Cornell

Filing 5

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Clerk receive and file the complaint in this action without prepayment of the required filing fee. See 28 U.S.C. § 1915. IT IS FURTHER ORDERED that plaintiff shall pay an initial p artial filing fee of $3.65 within thirty (30) days from 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 regis tration 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 and fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by Honorable Audrey G. Fleissig on 3/7/2011. (NCL)

Abdul-Khaliq v. Cornell

Doc. 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION ABBAS ABDUL-KHALIQ, Plaintiff, v. PATRICIA CORNELL, et al., Defendants. ) ) ) ) ) ) ) ) )

No. 4:10-CV-2196-AGF

MEMORANDUM AND ORDER This matter is before the Court upon the application of Abbas Abdul-Khaliq (registration no. 23227) for leave to commence this action without payment of the required filing fee. 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

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. See 28 U.S.C.

§ 1915(b)(1). 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). See

The agency having custody of the prisoner

Dockets.Justia.com

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 See 28

immediately preceding the submission of his complaint.

U.S.C. § 1915(a)(1),(2). A review of plaintiff's account statement indicates an average monthly deposit of $18.25, and an average monthly account balance of $3.51. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess

an initial partial filing fee of $3.65, 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 at any time 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 Neitzke v.

lacks an arguable basis either in law or in fact." Williams, 490 U.S. 319, 325 (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, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007).

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In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal The

construction.

Haines v. Kerner, 404 U.S. 519, 520 (1972).

Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. v. Hernandez, 504 U.S. 25, 32 (1992). The complaint Plaintiff, an inmate at the Potosi Correctional Center ("PCC"), seeks monetary and declaratory relief in this 42 U.S.C. § 1983 action against defendants Patricia Cornell (Deputy Division Director), Fred Johnson (PCC Assistant Warden), Ian Wallace (PCC Deputy Warden), William Milam (PCC Caseworker), Greg Dunn (PCC Major), Jason Crawford (PCC Correctional Officer), Lawrence Gould (PCC Correctional Officer), Unknown Moore (PCC Correctional Denton

Officer), and Rick Lanchaster (PCC Correctional Investigator). Plaintiff alleges that defendants violated his Due Process rights when they issued him a false conduct violation, refused to view a video which plaintiff claims would have exonerated him, denied him legal counsel, and failed "to properly investigate plaintiff's I.R.R.'s," which resulted in with plaintiff no spending to ten days in

disciplinary

segregation

referral

administrative

segregation. Plaintiff also claims that defendants Gould and Moore wrote a false conduct violation that was placed on a "Temporary

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Administration Segregation Confinement Form," thereby making "the violation more serious than it was initially." Discussion For the Due Process Clause to be implicated, an inmate must be subjected to "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Conner, 515 U.S. 472 (1995). Sandin v.

Plaintiff's allegations do not

indicate that he has suffered the type of atypical and significant hardship in which the state might conceivably create a liberty interest. Cf. id. at 485-86 (no atypical and significant hardship

where inmate spent thirty days in solitary confinement); Hemphill v. Delo, 124 F.3d 208, 1997 WL 581079, **2 (8th Cir. 1997)(same; 4 days locked in housing unit, 30 days in disciplinary segregation, and 290 days in administrative segregation); Driscoll v. Youngman, 124 F.3d 207, 1997 WL 581072, **2 (8th Cir. 1997)(same; 135 days in disciplinary and administrative segregation). As such, having

carefully reviewed the complaint, the Court will dismiss this action as legally frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B). In accordance with the foregoing, IT IS HEREBY ORDERED that the Clerk receive and file the complaint in this action without prepayment of the required filing fee. See 28 U.S.C. § 1915. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $3.65 within thirty (30) days from the date 4

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 and fails to state a claim upon which relief may be granted. A separate Order See 28 U.S.C. § 1915(e)(2)(B). of Dismissal shall accompany this

Memorandum and Order. Dated this 7th day of March, 2011.

UNITED STATES DISTRICT JUDGE

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