Bailey v. Doe #2

Filing 13

MEMORANDUM AND ORDER: ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, as the complaint is legally frivolous and/or 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. cc: pltff. Signed by Honorable Henry E. Autrey on 5/18/11. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID EUGENE BAILEY,
Plaintiff,
v.
JANE DOE #2,
Defendant.

)
)
)
)
)
)
)
)
)

No. 4:11CV412 TIA

MEMORANDUM AND ORDER
This matter is before the Court upon the payment of plaintiff’s initial partial
filing fee. Plaintiff having been granted leave to proceed in forma pauperis and paid
the initial partial filing fee, his claims against defendant Jane Doe #2 must be
reviewed pursuant to 28 U.S.C. § 1915 for frivolousness, maliciousness and for
failure to state a claim. After reviewing the complaint, the Court will dismiss the
instant action for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B).
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, 3233 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The Complaint
Plaintiff asserts that in February of 2009, defendant Jane Doe #2, a Functional
Unit Manager at Moberly Correctional Center (“MCC”), “used the [threat of the]
suicide cell to abstract information from [him].” In essence, plaintiff claims, in a
conclusory manner, that Jane Doe #2 threatened to place him in a suicide cell if he
failed to follow instructions. Plaintiff has not identified exactly how or what he was
instructed to do, only stating that he was never actually forced by defendant Jane Doe
#2 into a “suicide cell.”
Plaintiff additionally asserts that defendant Jane Doe #2 put a “red flag” on
him, which “causes all the guards to write an inmate up on frivolous and/or nonexistent violations.” Plaintiff does not identify the alleged instances relating to the
-2-

false write-ups. He merely states in a conclusory manner that within a week of “this
incident,” he had an accumulation of violations that eventually lead him to spending
time in the “hole,” being transferred to a higher level camp and caused an eventual
extension of his parole date.”
Discussion
Plaintiff’s allegations against Jane Doe #2 are wholly conclusory and fail to
state a plausible claim for relief. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51
(2009). His assertions against defendant regarding her placement of a “red flag” on
his record, and the alleged harm he suffered as a result of this “red flag,” are made up
of nothing but conclusory statements and fail to contain any elements or factual
assertions that would lead the Court to believe plaintiff’s allegations are even
plausible. Id. Moreover, plaintiff’s claims relating to the alleged verbal threats by
Jane Doe #2, without more, cannot sustain a cause of action. See, e.g., McDowell v.
Jones, 990 F.2d 433, 434 (8th Cir. 1993); King v. Olmsted, 117 F.3d 1065, 1067 (8th
Cir. 1997) (verbal harassment actionable only if it is so brutal and wantonly cruel that
it shocks the conscience, or if the threat exerts coercive pressure on the plaintiff and
the plaintiff suffers from a deprivation of a constitutional right); see also, Gaut v.
Sunn, 810 F.2d 923, 925 (9th Cir.1987) (noting that a mere naked threat to engage in
an act prohibited by the Constitution is not equivalent to doing the act itself). As a
-3-

result, the Court will dismiss this action for failure to state a claim upon which relief
can be granted.
Accordingly,
IT IS HEREBY ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint, as the complaint is legally frivolous and/or 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.
Dated this 18th day of May, 2011.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

-4-