Harris v. Russell et al
Filing
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OPINION 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 $20.53 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. IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel [Doc. #3] is DENIED. An Order of Dismissal will accompany this Memorandum and Order. 3 2 ( Initial Partial Filing Fee due by 7/13/2013.) Signed by District Judge Henry E. Autrey on 6/13/13. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JIM HARRIS, JR.,
Plaintiff,
v.
TERRY RUSSELL, et al.,
Defendants.
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No. 4:13CV891 TCM
OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff (registration no.
45474), an inmate at Southeast 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 $20.53. 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
$102.67, and an average monthly balance of $16.00. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $20.53, 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 Southeast Correctional Center (“SECC”), brings this
action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Named as
defendants are: Terry Russell (Warden); George Lombardi (Director, Missouri
Department of Corrections); Stan Payne (Asst. Warden); Unknown (Mrs.) Duncan
(Correctional Officer); and Unknown Pultz (Caseworker).
Plaintiff claims that on September 6, 2012, he “snitched” on his cellmate,
telling officers at SECC that his “cellie” was hiding contraband in his cell. Plaintiff
claims that as the search of the cell progressed, stamps were found hidden inside his
cellie’s peanut butter jar. Plaintiff claims that despite the jar belonging to his
cellmate, he was the one taken to administrative segregation by defendants Duncan
and Pultz. He claims that defendants Duncan and Pultz treated him with excessive
force when they placed him in administrative segregation, hog tying him to a bench
in administrative segregation by “extending his feet in mid-air, while chaining his
arms to the metal bench.” Plaintiff states that he was kept in this position for a short
time while they searched his cell, but that it caused him pain, nonetheless. Plaintiff
claims that he has severe arthritis, bone disease, nerve damage from a gunshot wound
to the neck and a broken jaw which was aggravated by the alleged excessive force
(the “hog-tying”) of defendants Duncan and Pultz.
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Plaintiff was in administrative segregation nine days, and he claims that no
other white inmates were placed in administrative segregation for “stamps, tobacco
or lighters, they were only fired.”
Plaintiff seeks monetary damages in an amount of $500,000 from each
defendant, as well as punitive damages in an amount of $2.5 million. Plaintiff has not
made any allegations against defendants Russell, Lombardi or Payne.
Discussion
The complaint is silent as to whether defendants Duncan or Pultz are being
sued in their official or individual capacity. 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
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§ 1983.” Id. As a result, the complaint fails to state a claim upon which relief can be
granted, with respect to defendants Duncan or Pultz.1
Additionally, the complaint fails to state a claim against defendants Russell,
Lombardi or Payne. “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 defendant
was personally involved in or directly responsible for 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 Russell, Lombardi or Payne 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 with respect to these
defendants as well.
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Moreover, to the extent plaintiff was attempting to assert a constitutional
claim for his placement in administrative segregation, he has failed to do so. To
state a claim under § 1983 for unconstitutional placement in administrative
segregation, a prisoner “must show some difference between his new conditions in
segregation and the conditions in the general population which amounts to an
atypical and significant hardship.” Phillips v. Norris, 320 F.3d 844, 847 (8th Cir.
2003). Plaintiff has made no such allegations. As a result, the complaint is
frivolous or fails to state a claim upon which relief can be granted.
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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 $20.53 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.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel [Doc. #3] is DENIED.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 13th day of June, 2013.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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