Hinkle v. Lombardi et al

Filing 5

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Dwayne E. Hinkle motion is GRANTED..IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $32.83 with in 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( Initial Partial Filing Fee due by 7/7/2014.)IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B).. Signed by District Judge Stephen N. Limbaugh, Jr on 6/5/14. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DWAYNE E. HINKLE,
Plaintiff,
v.
GEORGE A. LOMBARDI, et al.,
Defendants.

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No. 4:14CV240 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff Dwayne E. Hinkle
(registration no. 1069697), an inmate at Eastern Reception, Diagnostic 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 plaintiff does not have sufficient funds to pay the
entire filing fee and will assess an initial partial filing fee of $32.83. 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 $164.17, and an average monthly
balance of $29.75. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $32.83, 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).
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

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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 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, an inmate at ERDCC, brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights against the following defendants: George Lombardi (Director);
Terry Russell (Warden); Stan Jackson (Asst. Warden); John E. Bain (Functional Unit Manager);
Unknown Williamson (Correctional Officer/Property Room Officer); and Joe Hoffmeister
(Grievance Officer).
In his complaint, plaintiff claims that his radio and sunglasses were “taken” from him
pursuant to a Missouri Department of Corrections (“MDOC”) “policy” when he was transferred
to ERDCC and that such a taking was a violation of the due process clause. The record attached
to plaintiff’s complaint illustrates that plaintiff was merely told that because both items had been
“replaced” when they were sent out to be “fixed” while he had previously been residing at
SCCC, when he was transferred to ERDCC, the items had to be withheld from him under the
grounds that they were “new” and were no longer sold at the “camp” that he was being
transferred to.1

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Plaintiff was provided sixty (60) days from the time his grievance response was denied to send
his radio and sunglasses to someone outside the prison either by mail or through approved
visitation procedures. It is unclear from the record before the Court whether plaintiff sent out the
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Plaintiff believes that because the radio and sunglasses were voluntarily replaced by the
company when he sent them to be repaired, his use of the materials should be “grandfathered”
under the MDOC Rules and Regulations, and thus, he should be able to keep them while residing
at ERDCC.
Discussion
The complaint is silent as to whether defendants are being sued in their official or
individual capacities. Where a Acomplaint is silent about the capacity in which [plaintiff] is
suing defendant, [a district court must] interpret the complaint as including only official-capacity
claims.@ Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir.1995); Nix v.
Norman, 879 F.2d 429, 431 (8th Cir. 1989). 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 Dept. of State Police, 491 U.S. 58, 71 (1989). A[N]either
a State nor its officials acting in their official capacities are >persons= under ' 1983.@ Id. As a
result, the complaint fails to state a claim upon which relief can be granted with respect to the
named defendants.
Moreover, the Court feels compelled to add that even if plaintiff would have named
defendants in their individual capacities, his allegations would still fail to state a claim for relief.
Plaintiff’s allegations sound not as a violation of the due process clause, but instead of a prison
regulation. And a federal court's inquiry is not whether prison regulation was violated but
whether Constitution was violated. Griffin-Bey v. Bowersox, 978 F.2d 455, 457 (8th Cir. 1992)
(per curiam).
Although the due process clause may be implicated when a prisoner suffers a loss of
property, if the taking of property by prison officials is intentional, however, and the state
radio and sunglasses to a friend or family member himself or if plaintiff turned them over to
ERDCC staff to be disposed of.
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provides an adequate post-deprivation remedy, there is no violation of due process. Hudson v.
Palmer, 468 U.S. 517 (1984); Parratt v. Taylor, 451 U.S. 527 (1981), overruled on other grounds,
Daniels v. Williams, 474 U.S. 327, 328 (1986). Missouri state laws provide an adequate postdeprivation remedy to plaintiff, if he wishes to seek one in Missouri state court. As such, there
cannot be said to be a violation of the due process clause in this instance. See Orebaugh v.
Caspari, 910 F.2d 526, 527 (8th Cir. 1990) (taking did not violate due process because Missouri
prisoner had adequate post-deprivation remedy in state court); Clark v. Kansas City Missouri
School Dist., 375 F.3d 698, 703 (8th Cir. 2004) (no due process violation cognizable under '
1983 because Missouri provides adequate post-deprivation remedy of replevin).
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 $32.83
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 pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 5th day of June, 2014.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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