Young v. Wetzel et al

Filing 4

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff James Edward Young, Jr. motion is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $3 .90 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 cas e number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that this action is DISMISSED under 28 U.S.C. Section 1915(e)(2)(B). A separate Order of Dismissal will be filed forthwith. Signed by District Judge Catherine D. Perry on January 28, 2014. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES EDWARD YOUNG, JR.,
Plaintiff,
v.
TERRY L. WETZEL, et al.,
Defendants.

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No. 4:13CV2507 CDP

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of James Young, Jr. (registration no.
342824), an inmate at Farmington 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 $3.90. 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 sixmonth 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 $19.50, and an average monthly
balance of $0.01. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $3.90, 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 Alacks 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
Aenough 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. Named as defendants are Terri
Wetzel, a social worker; Lynn Calcote, a psychologist; and the Farmington Correctional Center.
Plaintiff alleges that he had a conditional release date in 2013, and he claims that the Board of
Probation and Parole (the "Board") did not release him on that date because he had not

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completed the Missouri Sex Offender Program ("MoSOP"). Plaintiff asserts that he failed out of
MoSOP in 2004 because of lack of sufficient progress. Plaintiff then signed a Refusal to
Participate form, and as a result, he was no longer eligible to complete the program. Plaintiff
asserts that he was wrongly placed in MoSOP Phase I in 2008 but that he never completed the
program.
Discussion
A suit against Farmington Correctional Center is, in effect, a suit against the State of
Missouri. The State of Missouri, however, is absolutely immune from liability under ' 1983.
See Will v. Michigan Dept. of State Police, 491 U.S. 58, 63 (1989). As a result, plaintiff's
allegations against Farmington Correctional Center are legally frivolous.
ALiability 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 Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (ABecause vicarious liability is inapplicable to Bivens and
' 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official=s own individual actions, has violated the Constitution.@). In the instant action, plaintiff
has not set forth any facts indicating that defendants Wetzel or Calcote 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 as to these defendants.
A[A]n inmate does not have a constitutionally-protected liberty interest in the possibility
of parole, and [the United States Court of Appeals for the Eighth Circuit] has held that the
Missouri parole statutes >create no liberty interest= under state law in the parole board=s
discretionary decisions.@ Adams v Agniel, 405 F.3d 643, 645 (8th Cir. 2005) (citing Greenholtz
v. Inmates of Nebraska Penal & Corrections, 442 U.S. 1, 9-11, (1979)). Consequently, plaintiff
did not have a constitutional right to be released on his 2013 conditional release date, and his

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§ 1983 claims fail as a matter of law.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma
pauperis [ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $3.90
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 under 28 U.S.C.
§ 1915(e)(2)(B).
A separate Order of Dismissal will be filed forthwith.
Dated this 28th day of January, 2014.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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