Perry v. Crews et al

Filing 15

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiff's motions to proceed in forma pauperis [Doc. #2 and #10] are GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.75 within thirty (30) days of th e 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 remitt ance 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 tha t the Clerk shall issue process or cause process to issue, through the waiver agreement with the Missouri Attorney General's Office, upon plaintiff's First Amendment retaliation claims in the second amended complaint as to defendants Jaso n Finch, Ms. R. Palmer, Michelle Gomas, John Colligan and Ms. M. Figge in their individual capacities only. The Clerk shall not issue process on plaintiff's claims against these defendants in their official capacities, as these claims are sub ject to dismissal. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. 1997e(g)(2), defendants Jason Finch, Ms. R. Palmer, Michelle Gomas, John Colligan and Ms. M. Figge, in their individual capacities, shall reply to plaintiff's claims of First Amendment retaliation in his second amended complaint 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 Clerk shall not issue process or cause process to iss ue upon the second amended complaint as to defendants T. Crews and John Doe2 because, as to these defendants, the second amended complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. IT IS FURTHER ORDER ED that the Clerk shall not issue process or cause process to issue upon plaintiff's second amended complaint as to plaintiff's claims for due process violations relating to his loss of "good time credits," removal from the FTC Treatment program in August 2010, his loss of a "conditional release date" relating to 2010, his placement in administrative segregation for twenty (20) days, and inability to use videotape evidence during his administrative hearing for a conduct violation he received in 2010. IT IS FURTHER ORDERED that plaintiff's motions for appointment of counsel [Doc. #4 and #13] are DENIED. IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner Standard. An appropriate Order of Partial Dismissal shall accompany this Memorandum and Order. Signed by District Judge Rodney W. Sippel on 2/5/14. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARK R. PERRY,
Plaintiff,
v.
T. CREWS, et al.,
Defendants.

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No. 4:13CV1883 RWS

MEMORANDUM AND ORDER
This matter is before the Court upon the motions of plaintiff (registration no.
1088908), an inmate at Eastern Reception, Diagnostic and Correctional Center
(“ERDCC”), for leave to commence this action without payment of the required filing
fee [Doc. #2 and #10]. 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 $1.75. 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
$8.75, and an average monthly balance of $0. Plaintiff has insufficient funds to pay
the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$1.75, 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). 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).
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

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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
Plaintiff brings this action under 42 U.S.C. § 1983 alleging violations of his
due process rights. Named as defendants are: T. Crews (Functional Unit Manager);
John Doe (Correctional Officer); Ms. M. Figge (Correctional Officer); Ms. R. Palmer
(Substance Abuse Counselor I); Ms. Michelle Gomas (Substance Abuse Counselor
II); Jason Finch (Board Hearing Officer); John Colligan (Program Director); James
Crump (Functional Unit Manager). Plaintiff sues defendants in their individual and
official capacities.
Plaintiff alleges that on August 10, 2010, while he was incarcerated at
Farmington Treatment Center (“FTC”), he was assaulted by another inmate.
Defendant Figge issued plaintiff a conduct violation for “engaging in an unauthorized
physical struggle.” Plaintiff’s initial disciplinary hearing was held in front of
defendant Crews and John Doe Correctional Officer. Prior to his hearing plaintiff
requested that the video evidence from the facility’s cameras be introduced to
demonstrate his innocence. The request was denied. Plaintiff was sentenced to
twenty (20) days in disciplinary segregation. Plaintiff claims that he is not asserting
a violation of his due process rights with respect to his placement in disciplinary
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segregation, but instead, he is claiming a denial of due process in defendants’ failure
to allow him the videotape evidence at the hearing.
Plaintiff is also alleging a violation of his due process rights with respect to his
loss of his “FTC graduation date.” Plaintiff claims that if he would not have been
given the false conduct1 violation by defendant Figge, he would have graduated from
the FTC Treatment Program on time and would not have continued to be
“incarcerated past his 9/2/2010 estimated FTC Treatment graduation date.”
Plaintiff additionally claims that when he was able to return to the FTC
Treatment Program on July 2, 2013 he was expected to complete the program on
December 31, 2013. However, he claims that twenty-three (23) days into the program
several of the named defendants began to retaliate against him when they found out
he had exercised his First Amendment Rights and filed a lawsuit relating to his early
termination from the FTC Treatment Program in 2010. See Perry v. Luebbers,
4:11CV158 RWS (E.D. Mo.). Plaintiff claims that defendants Finch, Palmer, Gomas,
Colligan and Figge all engaged in retaliatory acts against him, eventually resulting
in his second dismissal from the FTC Treatment Program.
Discussion

1

Plaintiff claims that defendant Figge lied when she said she witnessed the
altercation between plaintiff and the other inmate.
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Plaintiff’s complaint alleges that the purported actions of the named defendants
violated his constitutional rights because he was found guilty of a violation of the
Missouri Department of Correction’s rules, “given a conduct violation,” had his
“good time credits” taken away and this, in turn, caused an extension of his
“conditional release date.”
Inmates do not have a liberty interest in conditional release, or an “early out”
date. Greenholtz v. Inmates of Neb. Penal Corr. Complex, 442 U.S. 1, 7 (1979)
(“there is no constitutional inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence”).

Inmates only have a

constitutional liberty interest in conditional release if such an interest is created by
state statute. Id. Missouri does not by statute create a liberty interest in conditional
release. Adams v. Agniel, 405 F.3d 643, 644 (8th Cir.2005); Johnson v. Missouri
Bd. of Prob. & Parole, 92 S.W.3d 107, 113–14 (Mo.App.2002); Dace v. Mickelson,
816 F.2d 1277, 1280–81 (8th Cir.1987). Because Missouri inmates have no liberty
interest in conditional release, they also have no liberty interest in any condition or
conditions imposed as a part of their grant of conditional release. See Patterson v.
Webster, 760 F.Supp. 150, 153 (E.D.Mo.1991) (because no liberty interest in
conditional release, no procedural protections attach to the conditions imposed by the
Parole Board). As such, plaintiff's allegations fail to state a claim upon which relief
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may be granted relating to his removal from the FTC program, the loss of his “good
time credits” and the loss of his “conditional release date.”
Although plaintiff states that he is not attacking the procedure by which he was
mandated to spend twenty (20) days in administrative segregation after receipt of the
conduct violation and removal from the FTC program, the Court will address any
denial of due process claim he might have with relation to such. The Court will do
so in an abundance of caution, given that plaintiff is asserting a denial of his due
process rights with regard to the fact that he was allegedly denied access to video
evidence in his administrative hearing process.
In order to determine whether plaintiff “possesses a liberty interest, [the Court
must] compare the conditions to which [plaintiff] was exposed in segregation with
those he . . . could ‘expect to experience as an ordinary incident of prison life.’”
Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (quoting Beverati v. Smith, 120
F.3d 500, 503 (4th Cir. 1997)). In this context, the Court “do[es] not consider the
procedures used to confine the inmate in segregation.” Id. (citing Kennedy v.
Bankenship, 100 F.3d 640, 643 (8th Cir. 1996)). For plaintiff “to assert a liberty
interest, he must show some difference between [the] conditions in segregation and
the conditions in the general population which amounts to an atypical and significant
hardship.” Id. Plaintiff makes no such assertions in the complaint. As a result,
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plaintiff has failed to allege that defendants have infringed upon a constitutionally
protected liberty interest with regard to the process used to place plaintiff in
administrative segregation for a period of twenty (20) days.
As for plaintiff’s allegations that he was unlawfully denied videotape evidence
in the review process leading up to his administrative hearings, the Court additionally
finds no constitutional violations with respect to this claim.
A plaintiff challenging a disciplinary hearing must show that the punishment
intrudes on a protected liberty interest “so as to entitle him to those minimum
procedures appropriate under the circumstances and required by the due process
clause to insure that the state-created right is not arbitrarily abrogated.” Madison v.
Parker, 104 F.3d 765, 768 (5th Cir.1997) (citing Wolff v. McDonnell, 418 U.S. 539,
557). The Supreme Court has explained that many of the restraints of prison life do
not violate the Constitution:
[T]hese [liberty] interests will be generally limited to freedom from
restraint which, while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process Clause of its
own force, ... nonetheless imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.
Sandin v. Conner, 515 U.S. 472, 484 (1995). The Fifth Circuit has further explained
that “these interests are generally limited to state created regulations or statutes which
affect the quantity of time rather than the quality of time served by a prisoner.”
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Madison, 104 F.3d at 767; see, e.g., Sandin, 515 U.S. at 485–86 (no atypical and
significant hardship where inmate spent thirty days in solitary confinement);
Hemphill v. Delo, 124 F.3d 208 (8th Cir.1997) (same; four days locked in housing
unit, thirty days in disciplinary segregation, and approximately 290 days in
administrative segregation); Freitas v. Ault, 109 F.3d 1335, 1337–38 (8th
Cir.1997)(same; ten days administrative segregation and thirty days on “on-call”
status, as well as loss of higher paying job and numerous privileges); Wycoff v.
Nichols, 94 F.3d 1187, 1190 (8th Cir.1996)(same; ten days disciplinary detention and
100 days in maximum-security cell). Under the standards set forth in Sandin, the loss
of twenty (20) days in administrative segregation cannot be said to be atypical,
significant deprivations that would encroach upon any liberty interest such that the
right to the videotape evidence would arise.
Moreover, it appears that plaintiff may be taking issue with a prison rule that
disallows the admission of video evidence before administrative hearings. A federal
court's inquiry is not whether prison regulation was violated but whether the
Constitution was violated. Griffin–Bey v. Bowersox, 978 F.2d 455, 457 (8th
Cir.1992) (per curiam).
The Court will last address plaintiff’s claims that he was retaliated against,
under the First Amendment, by defendants Finch, Palmer, Gomas, Colligan and Figge
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when he returned to the FTC Treatment Program in July of 2013. Plaintiff has
alleged enough facts to assert retaliation claims against these defendants in their
individual capacities, as such, the Court will order the Clerk to issue process on these
defendants with regard to these claims. The claims against these defendants in their
official capacities, however, will be dismissed, as claims against government officials
in their official capacities are the equivalent of naming the government entity that
employs the official, in this case the State of Missouri. The State of Missouri is not
a “person” under 42 U.S.C. § 1983. Will v. Michigan Dept. of State Police, 491 U.S.
58, 71 (1989).
Plaintiff’s motions for appointment of counsel, however, will be denied at this
time. There is no constitutional or statutory right to appointed counsel in civil cases.
Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In
determining whether to appoint counsel, the Court considers several factors,
including (1) whether the plaintiff has presented non-frivolous allegations supporting
his or her prayer for relief; (2) whether the plaintiff will substantially benefit from the
appointment of counsel; (3) whether there is a need to further investigate and present
the facts related to the plaintiff’s allegations; and (4) whether the factual and legal
issues presented by the action are complex. See Johnson v. Williams, 788 F.2d 1319,
1322-23 (8th Cir. 1986); Nelson, 728 F.2d at 1005.
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After considering these factors, the Court finds that the facts and legal issues
involved are not so complicated that the appointment of counsel is warranted at this
time. Plaintiff has so far articulated his claims in a meaningful and thoughtful manner
before this Court. Although plaintiff states that he is in need of counsel to assist him
with his claims, his pleadings before this Court show otherwise.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motions to proceed in forma
pauperis [Doc. #2 and #10] are GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee
of $1.75 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, through the waiver agreement with the Missouri Attorney General’s
Office, upon plaintiff’s First Amendment retaliation claims in the second amended
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complaint as to defendants Jason Finch, Ms. R. Palmer, Michelle Gomas, John
Colligan and Ms. M. Figge in their individual capacities only. The Clerk shall not
issue process on plaintiff’s claims against these defendants in their official capacities,
as these claims are subject to dismissal.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
defendants Jason Finch, Ms. R. Palmer, Michelle Gomas, John Colligan and Ms. M.
Figge, in their individual capacities, shall reply to plaintiff’s claims of First
Amendment retaliation in his second amended complaint 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 Clerk shall not issue process or cause
process to issue upon the second amended complaint as to defendants T. Crews and
John Doe2 because, as to these defendants, the second amended complaint is legally
frivolous or fails to state a claim upon which relief can be granted, or both.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon plaintiff’s second amended complaint as to plaintiff’s claims
for due process violations relating to his loss of “good time credits,” removal from

2

In general, fictitious parties may not be named as defendants in a civil
action. Phelps v. United States, 15 F.3d 735, 739 (8th Cir. 1994). It appears that
the only claims relating to “John Doe” are in regard to the due process claims
being dismissed. Thus, he will also be dismissed without prejudice.
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the FTC Treatment program in August 2010, his loss of a “conditional release date”
relating to 2010, his placement in administrative segregation for twenty (20) days,
and inability to use videotape evidence during his administrative hearing for a
conduct violation he received in 2010.
IT IS FURTHER ORDERED that plaintiff’s motions for appointment of
counsel [Doc. #4 and #13] are DENIED.
IT IS FURTHER ORDERED that this case is assigned to Track 5B: Prisoner
Standard.
An appropriate Order of Partial Dismissal shall accompany this Memorandum
and Order.
Dated this 5th day of February, 2014.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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