Dykes v. Murphy et al

Filing 8

OPINION, MEMORANDUM, AND ORDER: IT IS HEREBY ORDERED that plaintiff's motions to proceed in forma pauperis [Doc. # 2 and # 7 ] are GRANTED. 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. Signed by Honorable Henry E. Autrey on 9/28/11. (TRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HAROLD STEPHEN DYKES,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
BRIAN MURPHY, et al.,
Defendants.

No. 4:11CV1472 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff for leave to
commence this action without prepayment of the filing fee pursuant to 28 U.S.C. §
1915. Upon consideration of the financial information provided with the motion, the
Court finds that plaintiff is financially unable to pay any portion of the filing fee. As
a result, plaintiff will be granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Additionally, the Court has reviewed the complaint and will dismiss
it 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 must 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 from a defendant who is immune
from such relief. An action is frivolous if it “lacks an arguable basis in either law or

fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose
of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify
the allegations in the complaint that are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009).

These include “legal

conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are]
supported by mere conclusory statements.” Id. at 1949. Second, the Court must
determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a “context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 1950. The plaintiff is required to
plead facts that show more than the “mere possibility of misconduct.” Id. The Court
must review the factual allegations in the complaint “to determine if they plausibly
suggest an entitlement to relief.”

Id. at 1951.

When faced with alternative

explanations for the alleged misconduct, the Court may exercise its judgment in
determining whether plaintiff’s conclusion is the most plausible or whether it is more
likely that no misconduct occurred. Id. at 1950, 51-52.
-2-

The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of
his civil rights which purportedly occurred during his incarceration in the Missouri
Department of Corrections.

Plaintiff claims that defendant correctional

officers/caseworkers violated his rights under the Eighth Amendment to the United
States Constitution when they refused to move him to a cell on the bottom floor of his
housing unit after showing them a “medical lay-in.”
Plaintiff brought the same or similar allegations against defendants in a prior
lawsuit before this Court. See Dykes v. Murphy, 4:09CV1062 HEA (E.D. Mo. 2010).
Defendants were granted summary judgment on plaintiff’s claims, as a result of
plaintiff’s failure to exhaust his administrative remedies with respect to his claims.
The finding of this Court was recently affirmed by the United States Court of Appeal
for the Eighth Circuit. See Dykes v. Murphy, No. 10-2632 (8th Cir. 2011).
Although plaintiff no doubt wishes for a different result, he cannot attempt to
relitigate this matter once again. “[A]n issue may not be relitigated in a second
lawsuit where that issue had previously been litigated in a prior lawsuit which
involved the same cause of action. Furthermore, issues which might have been raised
in the first lawsuit may not be raised in a second lawsuit arising out of the same cause
of action.” Robbins v. District Court of Worth County, Iowa, 592 F.2d 1015, 1017
-3-

(8th Cir. 1979). As such, plaintiff’s complaint will be dismissed pursuant to 28
U.S.C. § 1915.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motions to proceed in forma
pauperis [Doc. #2 and #7] are GRANTED.
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 28th day of September, 2011.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

-4-