Davis v. Collins et al

Filing 9

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Frederick P. Davis. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [#2] is GRANTED. IT IS FURTHE R ORDERED that the plaintiff shall pay an initial filing fee of $38.02 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. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the amended compl aint because the amended complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on July 9, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FREDERICK P. DAVIS,

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Plaintiff,
v.
THOMAS COLLINS, et al.,
Defendants.

No. 4:13CV140 CDP

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
500842), an inmate at Eastern Reception, Diagnostic and Correctional Center
(“ERDCC”), 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 $38.02. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the
amended complaint, the Court finds that the amended 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
$190.12, and an average monthly balance of $51.16. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $38.02, 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). 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 Amended Complaint
Plaintiff, an inmate at ERDCC, brings this action pursuant to 42 U.S.C. § 1983
alleging violations of his civil rights during his incarceration at Potosi Correctional
Center (“PCC”). Named as defendants are the following employees of PCC: Thomas
Collins (Caseworker); Daniel Blair (Lieutenant); William Kitchell (Sergeant); Shane
Pashia (Correctional Officer); and Dan Bryan (Functional Unit Manager).
Plaintiff asserts that in March of 2012 his due process rights were violated
during his incarceration at PCC when he was issued a conduct violation after a search
of his possessions and person. He claims that he was at recreation in the yard and
defendant Pashia searched his property.1 Plaintiff claims that he was holding a file
folder full of legal materials and that the folder also contained a book of stamps that
he intended to use to mail his legal materials. The stamps were identified as
“contraband” by defendant Blair, who plaintiff states was standing nearby, and
plaintiff was directed to report to an area in the game room to await a determination
as to discipline.
Defendant Collins, a caseworker, appeared in the game room to review the
contraband found on plaintiff, as well as all of the other offenders from Housing Unit

1

Plaintiff alleges that defendant Kitchell searched his person but did not find
any additional contraband.
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#3.

1

During an interview in the game room, plaintiff asserted that he should be

allowed to have the stamps because he was going to weigh his legal materials in the
library and then place them in the mail. He argued that he would not have the
opportunity to return to his housing unit prior to going to the law library to weigh his
legal materials so he should be allowed to have the stamps during recreation.
Plaintiff claims that he was told that he was not supposed to have stamps in the
recreation area. Plaintiff alleges that defendant Blair stated that the stamps would be
sent to the property room to be disposed of, his recreation would be canceled (he
would lose his law library time) and he would have to return to his housing unit. In
his amended complaint, plaintiff claims that “defendant Pashia issued Davis a
conduct violation upon the orders of defendant Collins.” However, in his prior
pleading, plaintiff stated that defendant Blair made a decision that he would receive
a conduct violation, again labeling the stamps “contraband.”2
Plaintiff states that later that afternoon defendant Kitchell read him a conduct
violation for Rule 20.1 - Failing to Comply With a Written or Verbal Order or

1

Plaintiff states that he believes defendant Collins was acting as a
Functional Unit Manager at this time in place of defendant Bryan.
2

Plaintiff makes much of who sent the stamps to the property room for
disposal and when exactly they were sent. The Court sees no relevance in these
details as it appears that even according to plaintiff’s arguments the stamps were
sent to the property room for disposal after they were labeled “contraband.”
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Instruction of Any Employee. Plaintiff asserts that the conduct violation was actually
written by defendant Pashia and “falsely represented the facts regarding the incident.”
Plaintiff states that approximately three days after the incident defendant
Collins functioned as his disciplinary hearing officer. Defendant Collins found him
guilty of the same conduct violation issued to him by defendant Pashia. Three days
later defendant Bryan, the Functional Unit Manager, modified plaintiff’s conduct
violation from a Rule 20.1 conduct violation to a Rule 24.1 - Possession of
Contraband - and his sanction to a five day activity restriction. Plaintiff grieved the
conduct violation through every step of the institutional grievance procedures.3
In the Warden’s Response to plaintiff’s grievance appeal, as well as the Appeal
Response from Dwayne Kemper, the Missouri Department of Corrections Deputy
Division Director of the Division of Adult Institutions, plaintiff was advised that
stamps were considered contraband when found in the recreation area because they
are utilized as a form of currency in the institutional setting.

Plaintiff was

additionally informed that although he maintained that he was going to weigh and
mail his legal materials from the library, he was fully aware that “items of mail are to

3

Plaintiff has attached copies of his Informal Resolution Requests,
Disciplinary Action Reports, Grievances, Grievance Appeals, and Grievance
Responses to the body of his complaint and amended complaint. The Court takes
judicial notice of these documents pursuant to Fed.R.Civ.P. 10.
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be weighed and taken back to the housing unit to affix postage and mail items out of
the institution.”
Plaintiff brings this action against defendants in their individual and official
capacities and he seeks declaratory and injunctive relief. Specifically, plaintiff seeks
to be exonerated by surveillance videotape evidence on a false minor conduct
violation.2
Discussion
A plaintiff challenging a disciplinary hearing must show that the punishment
intrudes on a protected liberty interest "so as to entitle him to those minimum
procedures appropriate under the circumstances and required by the due process
clause to insure that the state-created right is not arbitrarily abrogated." Madison v.
Parker, 104 F.3d 765, 768 (5th Cir.1997) (citing Wolff v. McDonnell, 418 U.S. 539,
557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). The Supreme Court has explained that
many of the restraints of prison life do not violate the Constitution:
[T]hese [liberty] interests will be generally limited to freedom from
restraint which, while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process Clause of its
own force, ... nonetheless imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.
2

Plaintiff has been told that security camera videos are not used when
determining the outcome of minor violations, although the tapes are maintained in
accordance with Missouri Department of Corrections policy.
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Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)
(citations omitted). The Fifth Circuit has further explained that "these interests are
generally limited to state created regulations or statutes which affect the quantity of
time rather than the quality of time served by a prisoner." Madison, 104 F.3d at 767;
see, e.g., Sandin, 515 U.S. at 485-86 (no atypical and significant hardship where
inmate spent thirty days in solitary confinement); Hemphill v. Delo, 124 F.3d 208
(8th Cir.1997) (same; four days locked in housing unit, thirty days in disciplinary
segregation, and approximately 290 days in administrative segregation); Freitas v.
Ault, 109 F.3d 1335, 1337–38 (8th Cir.1997)(same; ten days administrative
segregation and thirty days on “on-call” status, as well as loss of higher paying job
and numerous privileges); Wycoff v. Nichols, 94 F.3d 1187, 1190 (8th
Cir.1996)(same; ten days disciplinary detention and 100 days in maximum-security
cell).
Plaintiff challenges his disciplinary proceeding based on his inability to review
the videotape of the search of his property and person and his loss of recreation time.
Under the standards set forth in Sandin, the loss of recreation time cannot be said to
be atypical, significant deprivations that could encroach upon any liberty interest.
Sandin, 515 U.S. at 485-86. See also, Madison, 104 F.3d at 768 ("[petitioner's] 30
day commissary and cell restrictions ... do not represent the type of atypical,
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significant deprivations in which a state might create a liberty interest"); Lewis v.
Dretke, 54 F. App'x 795, 2002 WL 31845293, at *1 (5th Cir. Dec.11, 2002) (per
curiam) (unpublished) (loss of telephone privileges does not implicate due process);
Palmisano v. Bureau of Prisons, 258 F. App'x 646, 647-48 (5th Cir.2007) (per
curiam) (unpublished) (loss of telephone privileges did not establish "a claim of the
denial of constitutional rights").
Additionally, although plaintiff makes several conclusory allegations of a
“conspiracy” in this case, he has failed to meet the criteria enunciated under § 1983.
For example, plaintiff argues that there were “mistakes” on the written report as to
who performed the body search and which officer actually found the stamps and that
these “mistakes” are indicators of a vast conspiracy. To properly plead a claim for
civil conspiracy under § 1983, a plaintiff must include factual allegations showing a
“meeting of the minds” concerning unconstitutional conduct; although an express
agreement between the purported conspirators need not be alleged, there must be
something more than the summary allegation of a conspiracy. See Mershon v.
Beasely, 994 F.2d 449, 451 (8th Cir. 1993). His broad allegations of “mistakes” on
a written report are simply not enough to allege a conspiracy broad enough to show
a due process violation.

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In his amended complaint, plaintiff asserts that names were switched on the
report to protect defendant Kitchell of “any violation of clearly established policy
which prohibits the interviewing employee from having any involvement in any
manner, with incident.” The Court finds no relevance in this allegation with relation
to plaintiff’s due process claim. A federal court's inquiry is not whether prison
regulation was violated but whether the Constitution was violated. Griffin-Bey v.
Bowersox, 978 F.2d 455, 457 (8th Cir. 1992) (per curiam). Moreover, plaintiff’s own
recitation of events and his IRRs, Grievances, and Grievance Responses attached to
his complaint and amended complaint show that none of the officers involved in
confiscating the stamps were involved in interviewing plaintiff regarding the
violation. Plaintiff asserts that defendant Pashia found the stamps in his belongings
while defendant Kitchell searched his person. He then states that defendant Kitchell
interviewed him regarding the incident. Thus, there is no indication, even from
plaintiff’s own timeline of events, that a charging officer sat in judgment in his own
complaint on a disciplinary proceeding. Even if there were, there is no prohibition on
an interviewer or hearing officer from reviewing information concerning an event or
prohibiting them from completing their duties within an area wherein they are
searching other offenders or reviewing other items found by staff during a search.

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Moreover, the Court notes that construed liberally, plaintiff’s amended
complaint appears to be nothing more than an appeal from the disciplinary
committee’s findings. He quibbles with the way the conduct violation was written and
he states that he dislikes the prison rule that video evidence can only be used in major
violations like excessive force. As noted above, this Court cannot review the process
plaintiff received unless he first shows that he was deprived of a liberty interest.
Sandin, 515 U.S. at 485-86. Plaintiff has failed to show such a deprivation in this
instance.
Plaintiff next argues that his access to Courts was obstructed when his postage
stamps were confiscated in March of 2012. He asserts that he had money set aside
for “photocopying and research material. . .that had to be diverted to purchase more
postage to replace the stamps confiscated on March 19, 2012.” He claims that the
five-day cell restriction and the delay in purchasing more postage and copying legal
materials led to his “official capacity” claims being dismissed from his amended
complaint in a case he had ongoing in this Court at that time, see Davis v. Webb,
4:11CV1906 JAR (E.D. Mo.).
In order to allege an access-to-courts claim, a plaintiff must allege that he has
suffered "actual prejudice with respect to contemplated or existing litigation." Lewis
v. Casey, 518 U.S. 343, 348 (1996). The Court takes judicial notice that plaintiff
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states in his pleading, and the Court’s docket shows that his amended complaint in
Davis v. Webb was mailed by plaintiff and filed by this Court [4:11CV1907, Doc.
#14] prior to the allegations discussed by plaintiff in the instant action. Loss of
“official capacity” claims from an amended complaint filed prior to confiscation of
the stamps at issue in this case cannot show “actual prejudice” to a pending legal
claim. In other words, plaintiff made a pleading error prior to the confiscation of the
stamps having occurred. As to whether or not plaintiff was able to research and
refute any of his pleading errors in his complaint, the Court looks to the docket for
answers. In fact, review of the docket sheet for plaintiff’s case shows that plaintiff
was able to defeat a motion to dismiss after his stamps were allegedly confiscated,
and importantly, he was able to file a third amended complaint wherein he named
defendants in both their individual and official capacities. [4:12CV1906 JAR, Doc.
#75] . As such, plaintiff has not properly alleged an access-to-courts claim in this
case, as he suffered no prejudice from the alleged confiscation of his stamps to a
pending legal claim.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.

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IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $38.02 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.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the amended complaint because the amended complaint is
legally frivolous or fails to state a claim upon which relief can be granted, or both.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 9th day of July, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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