Shannon v. Missouri Department of Corrections 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 $72.70 within thir ty (30) days of the date of this Order. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e). An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on 06/06/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM SHANNON,
Plaintiff,
v.
MISSOURI DEPARTMENT
OF CORRECTIONS, et al.,
Defendants.

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No. 4:13CV1047 CDP

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of William Shannon
(registration no. 1167963), an inmate at Eastern Reception Diagnostic and
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 $72.70. 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
$363.48, and an average monthly balance of $83.93. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing
fee of $72.70, 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
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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); Denton v. Hernandez, 504 U.S.
25, 31 (1992). 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). A complaint fails to state a claim if it does not plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983, alleging that the defendant
parole officers denied his conditional release date of May 18, 2013, because he did
not complete a drug treatment program. Plaintiff claims that he has been given a new
conditional release date of September 18, 2013.
Discussion
Plaintiff’s claim with regard to the loss of his parole release date fails to
identify a liberty interest protected by due process. The Supreme Court held in
Greenholtz v. Inmates of Nebraska Penal & Corrections, 442 U.S. 1, 9-11 (1979), that
an inmate does not have a constitutionally-protected liberty interest in the possibility
of parole. Additionally, the United States Court of Appeals for the Eighth Circuit
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Court and Missouri state courts have held that Missouri parole statutes create no
liberty interest in parole. Adams v. Agniel, 405 F.3d 643, 645 (8th Cir.2005).
Therefore, a Missouri prisoner’s allegations challenging denial of parole do not state
a claim under 42 U.S.C. § 1983. Id.
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 $72.70 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 this action is DISMISSED without
prejudice pursuant to 28 U.S.C. § 1915(e).
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 6th day of June, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
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