Clemons et al v. Lombardi et al

Filing 6

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Andrew Laura, Matthew Nelson, Brandon Shaw, and Abbas Abdul-Khaliq are STRICKEN from the complaint. This dismissal does not count as a strike against these inmates. IT IS FURTHER ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $36.42 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payab le 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 Reginald Clemons claims are DISMISSED pursuant to 28 U.S.C. § 1915(e). IT IS FURTHER ORDERED that all remaining pending motions are DENIED. Signed by Honorable Rodney W. Sippel on 9/28/2011(RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REGINALD CLEMONS, et al.,
Plaintiffs,
v.
GEORGE A. LOMBARDI, et al.,
Defendants.

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No. 4:11CV1629 RWS

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Reginald Clemons
(registration no. 990102), an inmate at Potosi 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 $36.42. 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 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
$182.08, and an average monthly balance of $131.48. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $36.42, 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 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); Denton v. Hernandez, 504 U.S.
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25, 31 (1992). 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). A complaint fails to state a claim 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, 570 (2007).
The Complaint
Reginald Clemons (“plaintiff”) brings this action under 42 U.S.C. § 1983
against the Director of the Missouri Department of Corrections and the Warden of
Potosi Correctional Center for alleged denial of due process in disciplinary hearings.
Also named as plaintiffs in the caption of the complaint are inmates Andrew
Laura, Matthew Nelson, Brandon Shaw, and Abbas Abdul-Khaliq. These inmates
have signed the complaint as well. However, the complaint contains no allegations
pertaining to Laura, Nelson, Shaw, or Abdul-Khaliq, and these inmates have not
submitted motions to proceed in forma pauperis. These inmates appear to have been
added to the complaint in furtherance of seeking class certification. The Court will
strike these additional inmates from the complaint because it does not pertain to them,
because they have not submitted motions to proceed in forma pauperis, and because
this Court does not permit multiple prisoners to join as plaintiffs in an in forma
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pauperis case. See Georgeoff v. Barnes, 2009 WL 1405497, 2:09CV14 ERW (E.D.
Mo.). If these inmates wish to file lawsuits based on the allegations in the complaint,
they must each do so separately. Furthermore, plaintiff, as a pro se prisoner, cannot
bring a class action suit in this Court. See 28 U.S.C. § 1654; see also 7A Wright,
Miller & Kane, Federal Practice and Procedure: Civil 3d § 1769.1 (“class
representatives cannot appear pro se.”).
The complaint consists almost entirely of vague and conclusory assertions that
inmates’ rights are denied because officials at PCC do not allow inmates to introduce
videotape evidence during disciplinary hearings. The only specific allegation in the
complaint is that on April 26, 2010, prison official William Milam refused to allow
plaintiff to submit videotape evidence during a hearing. Plaintiff claims that the
named defendants are responsible as the superiors of Milam. Plaintiff does not allege
that he was placed in administrative segregation as a result of the hearing.
Discussion
“Liability under § 1983 requires a causal link to, and direct responsibility for,
the alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th
Cir. 1990); see also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not
cognizable under § 1983 where plaintiff fails to allege that defendant was personally
involved in or directly responsible for the incidents that injured plaintiff); Boyd v.
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Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in
§ 1983 suits). In the instant action, plaintiff has not set forth any facts indicating that
defendants were directly involved in or personally responsible for the alleged
violations of his constitutional rights. As a result, the complaint fails to state a claim
upon which relief can be granted.
Furthermore, the allegations in the complaint fail to rise to the level of a
constitutional violation. As a result, the complaint is legally frivolous.
Accordingly,
IT IS HEREBY ORDERED that Andrew Laura, Matthew Nelson, Brandon
Shaw, and Abbas Abdul-Khaliq are STRICKEN from the complaint. This dismissal
does not count as a “strike” against these inmates.
IT IS FURTHER 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 $36.42 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 prison registration number; (3) the case number; and (4)
that the remittance is for an original proceeding.

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IT IS FURTHER ORDERED that Reginald Clemons’ claims are
DISMISSED pursuant to 28 U.S.C. § 1915(e).
IT IS FURTHER ORDERED that all remaining pending motions are
DENIED.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 28th day of September, 2011.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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