Bell v. Lombardi et al

Filing 4

MEMORANDUM AND ORDER ( Initial Partial Filing Fee due by 3/5/2014.)IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECFNo. 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of &# 036;23.00 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 numbe r; 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 George Lombardi, Dwayne Kempker, Terry Russell,Jason Lewis, Don Roper, Fred Treece, David Vandergriff, Randall Owens, Ralph St urdevant David Howe, Unknown McFerron, Jordan Villmer, Timothy Jones, Matthew Downs, Margaret Huff, Terry Russell, Jr., Tina Coffman, Kathy Moore, and Christopher Skaggs. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defenda nts George Lombardi, Dwayne Kempker, Terry Russell, Jason Lewis, Don Roper, Fred Treece, David Vandergriff, Randall Owens, Ralph Sturdevant, David Howe, Unknown McFerron, Jordan Villmer, Timothy Jones, Matthew Downs, Margaret Huff, Terry Russell, Jr., Tina Coffman,Kathy Moore, and Christopher Skaggs shall respond 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 Clerk shall not issue process or cause process to issue upon the complaint as to defendants John Montgomery, John Doe 1, Benjamin Dement, John Francis, or John Doe 2, 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: Prisoner Standard. An order of partial dismissal will be filed separately.. Signed by District Judge Carol E. Jackson on 2/3/14. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHNELL A. BELL,
Plaintiff,
v.
GEORGE A. LOMBARDI, et al.,
Defendants.

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No. 4:14CV00027 CEJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Johnell Bell (registration no.
1103934), an inmate at South Central Correctional Center, 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 $23.00. 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 claims 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 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 $62.67, and an average monthly
balance of $115.00. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $23.00, which is 20 percent of plaintiff's average
monthly balance.
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 for alleged deprivations of his
constitutional rights. Named as defendants are George Lombardi (Director of the Missouri
Department of Corrections (“MoDOC”)), Dwayne Kempker (Deputy Director, MoDOC), Terry
Russell (Warden, Eastern Reception Diagnostic and Correctional Center (“ERDCC”)), Jason

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Lewis (Deputy Warden, ERDCC), Don Roper (Functional Unit Manager, ERDCC), Fred Treece
(Major, Chief of Custody, ERDCC), David Vandergriff (Captain, ERDCC), Randall Owens
Investigator, ERDCC), Ralph Sturdevant (Investigator, ERDCC), David Howe (Correctional
Officer, ERDCC), Unknown McFerron (Correctional Officer, ERDCC), Jordan Villmer
(Correctional Officer, ERDCC), Timothy Jones (Correctional Officer, ERDCC), Matthew
Downs (Correctional Officer, ERDCC), Margaret Huff (Correctional Officer, ERDCC), Terry
Russell, Jr. (Correctional Officer, ERDCC), Tina Coffman (Nurse, ERDCC), Kathy Moore
(Clinical Case Manager, ERDCC), Christopher Skaggs (Clinical Case Manager, ERDCC), John
Montgomery (Functional Unit Manager, ERDCC), John Doe 1 (Correctional Officer, ERDCC),
Benjamin Dement (Correctional Officer, ERDCC), John Francis (Correctional Officer, ERDCC),
and John Doe 2 (Correctional Officer, ERDCC).
Plaintiff alleges that on May 28, 2013, Villmer placed him in wrist restraints and then
punched him. Plaintiff says that Howe, Jones, Downs, Huff, and Russell, Jr., then entered the
cell and jointly assaulted him. Plaintiff further claims that McFerron, Moore, and Skaggs were
present but failed to protect him.
Plaintiff asserts that, immediately after the assault, Coffman refused to assess him or treat
him because she blamed him for the incident. Plaintiff maintains that he had suffered facial
fractures, a chipped tooth, right eye damage, and several cuts from the beating.
Plaintiff says that his mother called Lombardi and complained about the assault. As a
result of the call, says plaintiff, Francis, Dement, and John Doe 2 came to his cell, handcuffed
him, and told him to tell his mother not to call the prison any more or there would be “more
trouble” for plaintiff.
Plaintiff asserts that he was issued a conduct violation for allegedly assaulting Villmer
during the May 28 incident. Plaintiff states that Montgomery and John Doe 1 found him guilty

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of the violation without allowing plaintiff to present any evidence on his own behalf. Plaintiff
asserts that he was placed in disciplinary segregation for ninety days and that he spent one
hundred seventy-five days in administrative segregation.
Plaintiff claims that, before he was assaulted, several other inmates had been beaten
while in handcuffs by correctional officers in the housing unit where plaintiff lived. Plaintiff
asserts that one incident resulted in the death of the inmate. Plaintiff contends that defendants
Lombardi, Kempker, Russell, Lewis, Roper, Treece, Vandergriff, Owens, and Sturdevant knew
of these incidents and that they had the supervisory power to prevent future incidents. Plaintiff
alleges that, despite their knowledge and authority, they took no action to prevent the risk of
further harm to inmates, including himself.
Discussion
Plaintiff’s claims regarding the assault, failure to protect, denial of medical care, and the
supervisors’ failure to prevent correctional officers from assaulting prisoners all state a claim for
relief under § 1983. As a result, the Court will order the defendants to whom those claims are
directed to respond to the allegations in the complaint.
Plaintiff brings this action against the MoDOC defendants in both their individual and
official capacities. 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 Dep’t of State Police, 491 U.S. 58, 71 (1989). “[N]either a State nor its
officials acting in their official capacity are ‘persons’ under § 1983.” Id. As a result, plaintiff’s
official-capacity claims against the MoDOC defendants are legally frivolous.
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

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hardship.” Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003). Plaintiff has made no such
allegations. E.g., Hemphill v. Delo, 124 F.3d 208 (8th Cir. 1997) (unpublished) (four days
locked in housing unit, thirty days in disciplinary segregation, and approximately 290 days in
administrative segregation not atypical or significant). As a result, plaintiff’s allegations against
Montgomery and John Doe 1 fail to state a claim upon which relief can be granted.
Plaintiff’s claim that Dement, Francis, and John Doe 2 told him to tell his mother to stop
calling the prison or there would be “more trouble” fails to rise to the level of a constitutional
violation. See Burton v. Livingston, 791 F.2d 97, 99 (8th Cir. 1986) (“mere words, without
more, do not invade a federally protected right.”). Consequently, the Court will dismiss these
defendants from the complaint.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $23.00
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 upon the complaint as to defendants George Lombardi, Dwayne Kempker, Terry Russell,
Jason Lewis, Don Roper, Fred Treece, David Vandergriff, Randall Owens, Ralph Sturdevant,

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David Howe, Unknown McFerron, Jordan Villmer, Timothy Jones, Matthew Downs, Margaret
Huff, Terry Russell, Jr., Tina Coffman, Kathy Moore, and Christopher Skaggs.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants
George Lombardi, Dwayne Kempker, Terry Russell, Jason Lewis, Don Roper, Fred Treece,
David Vandergriff, Randall Owens, Ralph Sturdevant, David Howe, Unknown McFerron, Jordan
Villmer, Timothy Jones, Matthew Downs, Margaret Huff, Terry Russell, Jr., Tina Coffman,
Kathy Moore, and Christopher Skaggs shall respond 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 Clerk shall not issue process or cause process to
issue upon the complaint as to defendants John Montgomery, John Doe 1, Benjamin Dement,
John Francis, or John Doe 2, 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: Prisoner Standard.
An order of partial dismissal will be filed separately.
Dated this 3rd day of February, 2014.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

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