Page v. McDowell et al

Filing 6

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Ivan T. Page motion is GRANTED IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing feeof $22.27 within thirty (30) days of the date of this Order.( Initial Partial Filing Fee due by 2/10/2012.)IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then this case will be dismissed without prejudice. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to defendant Motley. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant Motley shall reply to pl aintiffs claims within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to defendants Mc Dowell, Atwell, Luebbers, Calcote, Villmer, Edmonds, Dix, or McSwain because, as to these defendants, the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both.IT IS FURTHER ORDERED that this case is assigned to Track 5B: PrisonerStandard. Signed by Honorable Stephen N. Limbaugh, Jr on 1/10/12. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
IVAN T. PAGE,
Plaintiff,
v.
ERICA MCDOWELL, et al.,
Defendants.

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No. 4:11CV1951 FRB

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Ivan Page (registration no.
1079284), an inmate at Farmington 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 $22.27. See 28 U.S.C. § 1915(b)(1).
Furthermore, after reviewing the complaint, the Court will partially dismiss the
complaint and will order the Clerk to issue process or cause process to be issued on
the non-frivolous portions of the complaint.
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
$111.33, and an average monthly balance of $15.17. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $22.27, 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
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fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 504 U.S.
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
Plaintiff brings this action under 42 U.S.C. § 1983 for alleged infringements
of his constitutional rights. Named as defendants are Erica McDowell (Therapist,
Missouri Sexual Offender Program (“MoSOP”)), Julie Motley (Director, MoSOP),
Mariann Atwell (Director of Rehabilitative Services, Missouri Department of
Corrections (“MoDOC”)), Ellis McSwain (Chairman, Board of Probation and Parole),
Al Luebbers (Warden, Farmington Correctional Center (“FCC”)), Lynn Calcote, Tom
Villmer (Warden, FCC), Lindell Edmonds, and Elaine Dix.
Plaintiff alleges that while he was participating in Phase II of MoSOP
defendant McDowell, who was his therapist, told the other inmates in group therapy
that plaintiff had previously been a correctional officers with MoDOC and the St.
Louis Department of Corrections. Plaintiff avers that McDowell was in an “intimate
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relationship” with one of the other inmates in the group and that she allowed this
inmate to exert control over the meetings. Plaintiff asserts that he was subject to
animosity and harassment by the other group members because of his former
employment. Such harassment allegedly included plaintiff being directed to rewrite
essays or redo other therapeutic activities. Plaintiff alleges that McDowell issued a
false conduct violation to him after he left group therapy without receiving
permission. Plaintiff says he merely needed to use the restroom and that he had
previously been allowed to do so without first seeking permission. According to
plaintiff, however, McDowell issued him the conduct violation stating that he had
stormed out of the room and appeared to be angry.
Subsequently, defendant Motley held a conduct violation hearing on the matter.
Plaintiff says that Motley decided he should be expelled from MoSOP based on the
conduct violation. Plaintiff argues that the violation was a minor one and did not
warrant expulsion from the program under MoDOC policy. Additionally, plaintiff,
who is African-American, claims that four Caucasian inmates who were found to
have committed serious violations were not expelled from the program. Plaintiff says
that he was discriminated against because of his race.

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Plaintiff says that defendant McSwain, as the Chairman of the Board of
Probation and Parole, should have ensured that offenders like himself received fair
disciplinary hearings.
Plaintiff claims that defendants Edmonds and Dix are responsible for placing
offenders at FCC into Phase II of MoSOP. Plaintiff argues that these defendants
should have been aware that MoDOC policy was violated when he was not returned
to MoSOP.
Plaintiff asserts that defendants Atwell, Luebbers, Calcote, and Villmer were
in supervisory positions and should have prevented McDowell and Motley from
violating his rights.
Discussion
The complaint survives initial review as to defendant Julie Motley. As a result,
the Court will order the Clerk to serve process on Motley.
To establish a prima facie case under 42 U.S.C. § 1983, a plaintiff must allege
two elements: (1) the action occurred “under color of law” and (2) the action is a
deprivation of a constitutional right or a federal statutory right. Parratt v. Taylor, 451
U.S. 527, 535 (1981). Plaintiff’s allegations against McDowell fail to state claim
under § 1983 because the alleged acts plaintiff complains of do not rise to the level

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of a constitutional violation. As a result, the Court will dismiss McDowell from the
complaint.
“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.
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 Edmonds, Dix, McSwain, Atwell, Luebbers, Calcote, or Villmer 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.
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 $22.27 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
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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 if plaintiff fails to pay the initial partial
filing fee within thirty (30) days of the date of this Order, then this case will be
dismissed without prejudice.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to issue upon the complaint as to defendant Motley.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendant Motley shall reply to plaintiff’s claims within the time provided by the
applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint as to defendants McDowell, Atwell, Luebbers,
Calcote, Villmer, Edmonds, Dix, or McSwain because, as to these defendants, the
complaint is legally frivolous or fails to state a claim upon which relief can be
granted, or both.
IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner
Standard.

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An appropriate Order of Partial Dismissal shall accompany this Memorandum
and Order.
Dated this 10th day of January, 2012.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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