Schmedeke v. Missouri Department of Corrections et al

Filing 8

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs motions to proceed in forma pauperis [Doc. #2 and #6] 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. 6 2 Signed by District Judge Henry E. Autrey on 7/19/12. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES JOHN SCHMEDEKE,
Plaintiff,
v.
MISSOURI DEPT. OF CORR., et al.,
Defendants.

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No. 4:12CV603 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.
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The Complaint
Plaintiff, a former inmate at Western Reception, Diagnostic and Correctional
Center, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil
rights.

Named as defendants are: the Missouri Department of Corrections

(“MDOC”); George Lombardi (Director, MDOC); Missouri Board of Probation and
Parole; Betty Wehmeyer (Record Officer); Leah Embly (District Parole Officer,
Missouri Eastern Corr. Center); Mary Green (Records Officer); S. Vorshee (CWA
III); Legal Review (MDOC); and Wade Beers (District Parole Officer).
Plaintiff’s complaint appears to allege that defendants incorrectly calculated
the time plaintiff spent in prison on his prior sentence of driving on a revoked license.
Plaintiff seeks to hold defendants liable for the allegedly improper calculations with
regard to his time served.
Plaintiff seeks monetary damages and injunctive relief.1
Discussion
The complaint fails to state a claim against the Missouri Department of
Corrections (MDOC). E.g., Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy
Corp., 948 F.2d 1084, 1086 (8th Cir. 1991) (agency exercising state power is not
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At the time plaintiff filed this action he was incarcerated at the Western
Reception, Diagnostic and Correctional Center. Since that time, plaintiff has been
released. Accordingly, his request for injunctive relief is moot.
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“person” subject to § 1983 suit). As a result, the complaint shall be dismissed as to
the MDOC pursuant to 28 U.S.C. § 1915(e)(2)(B).
The complaint is silent as to whether the remaining state employee defendants
are being sued in their official or individual capacities. Where a “complaint is silent
about the capacity in which [plaintiff] is suing defendant, [a district court must]
interpret the complaint as including only official-capacity claims.” Egerdahl v.
Hibbing Community College, 72 F.3d 615, 619 (8th Cir.1995); Nix v. Norman, 879
F.2d 429, 431 (8th Cir. 1989). Naming a government official in his or her official
capacity is the equivalent of naming the government entity that employs the official,
in this case the State of Missouri. Will v. Michigan Dept. of State Police, 491 U.S.
58, 71 (1989). “[N]either a State nor its officials acting in their official capacities are
‘persons’ under § 1983.” Id. As a result, the complaint fails to state a claim upon
which relief can be granted.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motions to proceed in forma
pauperis [Doc. #2 and #6] 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.
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An appropriate Order of Dismissal shall accompany this Memorandum and
Order.
Dated this 19th day of July, 2012.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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