Perry v. Edwards et al

Filing 5

MEMORANDUM AND ORDER IT IS HEREBY 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 $.60 within thirty (30) days of the date of this Ord er. 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) thatthe remittance is for an original proceeding . 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 Order of Dismissal will accompany this Memorandum and Order. 2 ( Initial Partial Filing Fee due by 4/20/2013.) Signed by District Judge Henry E. Autrey on 3/20/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CARLOS PERRY,
Plaintiff,
v.
LEONARD EDWARDS, et al.,
Defendants.

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No. 4:13CV292 TIA

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
34040), an inmate at St. Louis City Justice 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 $.60. 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
$3.00, and an average monthly balance of $2.55. Plaintiff has insufficient funds to
pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee
of $.60, 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). An action is malicious if it is
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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.
The Complaint
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Plaintiff, an inmate at the St. Louis City Justice Center, brings this action
pursuant to 42 U.S.C. § 1983, alleging violations of his civil rights. Named as
defendants, in their individual and official capacities, are Civil Justice Center
employees: Leonard Edwards; Reginald Moore; Sheila Troupe; Laverta Barass; Julius
Smith; Terris Henderson; and Dale Glass.
Plaintiff asserts that he is representing himself pro se in his ongoing criminal
action in St. Louis City Court and that he has not been allowed to receive the
unlimited access to the law library and law books that he has requested at the City
Justice Center.1 He claims, broadly, that this has interfered with his ability to defend
his criminal case in City Court, and he seeks monetary damages and injunctive relief.
Attached to plaintiff’s complaint, and thereby considered part of the record, are
copies of plaintiff’s IRRs and grievances, as well as defendants’ grievance responses
wherein they outline the access plaintiff has been given to the law library and legal
materials.
Discussion

1

See State v. Perry, Case No. 1222-CR02982-01 (22nd Judicial Circuit),
found at https://www.courts.mo.gov/casenet/cases.
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“To state a claim [for denial of meaningful access to the courts], inmates must
assert that they suffered an actual injury to pending or contemplated legal claims.”
Myers v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996).
Inmates undeniably enjoy a constitutional right of access to
the courts and the legal system. Lewis v. Casey, 518 U.S.
343, ----, 116 S. Ct. 2174, 2179, 135 L. Ed.2d 606 (1996);
Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491,
1494-95, 52 L. Ed.2d 72 (1977). To protect that right,
prisons must provide inmates with some access to legal
materials or to legal assistance so that inmates can prepare
and pursue complaints, and with some ability to mail these
complaints and related legal correspondence once
prepared. Casey, 518 U.S. at ----, 116 S.Ct. at 2180;
Bounds, 430 U.S. at 824-28, 97 S. Ct. at 1496-98. Inmates
do not have a right, however, either to law libraries or to
unlimited stamp allowances for legal mail. Instead, the
duty to make such arrangements is bounded by the inmates'
right of meaningful access to the courts. Casey, 518 U.S. at
----, 116 S. Ct. at 2180; Bounds, 430 U.S. at 828, 97 S. Ct.
at 1498.
Myers, at 544.
The Court has reviewed the entire docket in plaintiff’s criminal case and
despite plaintiff’s broad assertions of prejudice, has found no prejudicial rulings
against plaintiff. In fact, plaintiff’s pro se status is currently under advisement at this
time and several hearings appear to have been continued or deferred until this matter
can be ruled upon.

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Furthermore, the Court notes that a review of the grievance responses, as well
as plaintiff’s own complaint and accompanying IRRs, show that plaintiff has received
time in the library, as well as the benefit of legal materials.2 It appears that plaintiff’s
disagreement with defendants is the amount of time he has been allowed to spend in
the library as well as the cost being assessed for the materials, as he seeks at least “4
hours per day during week days” in the law library and free copying for legal
materials.3
In civil rights action brought by prison inmate, a court must accord substantial
deference to the professional judgment of prison administrators, who bear a
significant responsibility for defining legitimate goals of corrections system and for
determining most appropriate means to accomplish them. Overton v. Bazzetta, 123
S. Ct. 2162 (2003). There is nothing in the record, or in plaintiff’s allegations,
indicating that defendants have failed to define legitimate goals for use of the law

2

Plaintiff has included numerous requests for legal materials with his
complaint, many of which the Court concludes have formed the basis for several
of the motions filed in his criminal action.
3

By Memorandum dated January 30, 2013, LaVerta Barnes granted plaintiff
access to the library from 8 a.m. to 10 a.m. each Monday, Wednesday and Friday.
This request was revoked by Ms. Barnes on February 5, 2013 after she was told by
City Court personnel that plaintiff’s pro se status in his criminal action was
“deferred” and not yet “granted.” As such, per the Justice Center Regulations,
plaintiff was told that he needed a court order showing that he was representing
himself pro se in order to physically access the law library.
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library and legal materials. These lack of allegations, along with the lack of prejudice
shown above, results in a finding that plaintiff has failed to state a denial of access
to courts claim at this time.
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 $.60 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 complaint because the 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 20th day of March, 2013.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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