Clemons v. Lombardi et al

Filing 4

MEMORANDUM AND ORDER. (see order for details) 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 $59.81 within thi rty (30) days of the date of this Order. 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. IT IS FURTHER ORDERED that plaintiffs claims against the defendants in their official capacities are DISMISSED. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. Signed by District Judge Catherine D. Perry on 03/19/2013. (CBL)

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

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No. 4:13 CV 458 CDP

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 $59.81. See 28 U.S.C.
§ 1915(b)(1). Furthermore, after reviewing the complaint, the Court will order the
Clerk to issue process or cause process to be issued on 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
$231.42, and an average monthly balance of $299.06. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $59.81, which is 20 percent of plaintiff’s average monthly balance.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may 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 against a defendant who is
immune from such relief. An action is frivolous if “it lacks an arguable basis in either
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action fails to
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state a claim upon which relief can be granted if it does not plead “enough facts to
state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
127 S. Ct. 1955, 1974 (2007).
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the
complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). The Court must also weigh all factual allegations in favor of the plaintiff,
unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 3233 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983. Defendants are officials
at Potosi Correctional Center. Plaintiff alleges that defendants have been monitoring
his telephone calls from his attorneys and have been punishing him when his
attorneys have been conferencing in other counsel. Plaintiff also claims defendants
have been reading his legal mail and have put him in four point restraints during
meetings with his attorneys.
Discussion
After reviewing the complaint, the Court finds that it survives initial review
against the defendants in their individual capacities.

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However, 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 Dep’t of State Police, 491 U.S. 58, 71 (1989).
“[N]either a State nor its officials acting in their official capacity are ‘persons’ under
§ 1983.” Id. As a result, the complaint fails to state a claim upon which relief can be
granted as to the defendants in their official capacities.
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 $59.81 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 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.
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IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants 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 plaintiff’s claims against the defendants
in their official capacities are DISMISSED.
IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner
Standard.
Dated this 19th day of March, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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