Davis v. Lancaster et al

Filing 4

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 $48.37 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 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 causeprocess to issue upon the complaint as to defendants Timothy Lancaster, Troy Steele, Fred Johnson, Robert Savage, Sheri Shawve r, Stanley Pruitt, Dan Bryan, and Jamie Crump. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants Timothy Lancaster, Troy Steele, Fred Johnson, Robert Savage, Sheri Shawver, Stanley Pruitt, Dan Bryan, and Jamie Crump sha ll reply to plaintiffs 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 the court will dismiss defendants Terry White, Daniel Blair, Michael Miller, and Lois Dix because, as to these defendants, the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDERED that this case is assigned to Track 5B: PrisonerStandard. An Order of Partial Dismissal will be filed contemporaneously with this Memorandum and Order. 2 ( Initial Partial Filing Fee due by 9/22/2013.) Signed by District Judge Henry E. Autrey on 8/22/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FREDERICK P. DAVIS,
Plaintiff,
v.
TIMOTHY R. LANCASTER,
Defendants.

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No. 4:13CV1638 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Frederick Davis
(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 the plaintiff
does not have sufficient funds to pay the entire filing fee and will assess an initial
partial filing fee of $48.37. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing
the complaint, the Court will partially dismiss the complaint and will order the Clerk
to issue process or cause process to be issued on the non-frivolous portions of 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
$241.83, and an average monthly balance of less than $241.83. Plaintiff has
insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an
initial partial filing fee of $48.37, 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
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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); 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 alleges that defendants, all of whom were employed by Potosi
Correctional Center (“PCC”), violated his constitutional rights while he was
incarcerated there. He alleges that defendants Lancaster, Pruitt, Steele, Crump, and
Johnson violated his First Amendment rights by retaliating against him for having
filed a lawsuit against prison officials. He alleges that defendants Lancaster, White,
Steele, Blair, Dix, and Johnson violated his Fourteenth Amendment right to due
process by conducting an inadequate investigation with regard to his placement in
administrative segregation for three months.

And he alleges that defendants

Lancaster, Johnson, Steele, Savage, Pruitt, Shawver, and Bryan violated his First
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Amendment right to access to the courts by withholding his legal materials, which led
to plaintiff missing a court deadline.
Discussion
The Court finds that plaintiff has sufficiently alleged First Amendment claims
for retaliation and denial of access to the courts. See Revels v. Vincenz, 382 F.3d 870,
876 (8th Cir.2004) (retaliation); Myers v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996)
(access to the courts).
An inmate who makes a due process challenge to his placement in
administrative segregation must make a threshold showing that the deprivation of
which he complains imposed an “atypical and significant hardship . . . in relation to
the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
Plaintiff’s allegations do not indicate that he suffered the type of atypical and
significant hardship that might conceivably give rise to a liberty interest. Id. at 48586 (no atypical and significant hardship where inmate spent 30 days in solitary
confinement): Hemphill v. Delo, 124 F.3d 208 (8th Cir. 1997) (unpublished) (same;
30 days in disciplinary segregation, and approximately 290 days in administrative
segregation); Wycoff v. Nichols, 94 F.3d 1187, 1190 (8th Cir. 1996) (same; 10 days
disciplinary detention and 100 days in maximum security cell). As a result, the

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allegations relating to plaintiff’s placement in administrative segregation fail to state
a claim upon which relief can be granted.
“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 that defendant was
personally involved in or directly responsible for the 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 defendant Miller was directly involved in or personally responsible for
the alleged violations of his constitutional rights. As a result, the Court will dismiss
Miller from these proceedings.
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 $48.37 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

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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 as to defendants Timothy Lancaster, Troy Steele,
Fred Johnson, Robert Savage, Sheri Shawver, Stanley Pruitt, Dan Bryan, and Jamie
Crump.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants Timothy Lancaster, Troy Steele, Fred Johnson, Robert Savage, Sheri
Shawver, Stanley Pruitt, Dan Bryan, and Jamie Crump 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 the court will dismiss defendants Terry
White, Daniel Blair, Michael Miller, and Lois Dix because, as to these defendants,
the complaint is legally frivolous or fails to state a claim upon which relief can be
granted, or both.

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IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner
Standard.
An Order of Partial Dismissal will be filed contemporaneously with this
Memorandum and Order.
Dated this 22nd day of August, 2013.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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