Brown v. Howe et al

Filing 4

MEMORANDUM AND ORDER : 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 $28.18 within thirty (30) days of the dat e 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 th e Clerk shall issue process or cause process to issue upon the complaint as to defendants David Howe, Bobby Currington, Timmy Jones, Unknown Russell, Unknown Morgan, and Amanda Gibson. IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e( g)(2), defendant(s) David Howe, Bobby Currington, Timmy Jones, Unknown Russell, Unknown Morgan, and Amanda Gibson shall reply to plaintiff's claims within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Ci vil Procedure. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint as to defendants Jonna Grubbs, Stan Jackson, or Jason Lewis because, as to these defendants, the complaint is legally frivolo us 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 appropriate Order of Partial Dismissal shall accompany this Memorandum and Order.. Signed by District Judge Rodney W. Sippel on 3/5/14. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EDWARD Q. BROWN, JR.,
Plaintiff,
v.
DAVID HOWE,
Defendants.

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No. 4:14CV300 RWS

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Edward Brown, Jr. (registration no.
1012987), an inmate at Eastern Reception Diagnostic and 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 $28.18. 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 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 $54.67, and an average monthly
balance of $148.89. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $28.18, 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 against several officials at the Eastern
Reception Diagnostic and Correctional Center (ERDCC) in their individual capacities. Plaintiff
alleges that defendants David Howe, Bobby Currington, Timmy Jones, Unknown Russell, and
Unknown Morgan, who are correctional officers, were transporting him in wrist restraints on

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July 25, 2013, when they began hitting and kicking him. Plaintiff claims he was injured and that
defendant Amanda Gibson, a nurse, refused to treat his injuries. Plaintiff asserts that defendant
Jonna Grubbs, his Functional Unit Manager, reviewed the video evidence and the officers’
statements and found him guilty of assaulting the correctional officers. Plaintiff says he was not
allowed to introduce evidence. Plaintiff alleges that defendants Stan Jackson and Jason Lewis
reviewed Grubbs’s decision and the evidence and upheld her decision. Plaintiff says he was sent
to disciplinary segregation for thirty days, sentenced to administrative segregation for one to two
years, and that he lost his conditional release date.
Discussion
Plaintiff’s Eighth Amendment claims against Howe, Currington, Jones, Russel, Morgan,
and Gibson survive initial review under § 1915(e) and will not be dismissed at this time.
Plaintiff’s Due Process claims against Grubbs do not state a claim upon which relief can
be granted. For the Due Process Clause to be implicated, an inmate subjected to segregation
must have been subjected to “atypical and significant hardship . . . in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 515 U.S. 472 (1995). Plaintiff’s allegations do not
indicate that he has suffered the type of atypical and significant hardship which might
conceivably create a liberty interest. Id. 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)
(unpublished) (same; four days locked in housing unit, thirty days in disciplinary segregation,
and approximately 290 days in administrative segregation). Moreover, plaintiff has no right to
conditional release. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442
U.S. 1, 7 (1979) (“There is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence.”). It follows that defendants
Jackson and Lewis cannot be liable for reviewing Grubbs’s decision and agreeing with it. These

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defendants were not directly responsible for the alleged violation of plaintiff’s rights. See 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). As a result, I will dismiss defendants Grubbs, Jackson, and
Lewis 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 $28.18
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 David Howe, Bobby Currington, Timmy Jones,
Unknown Russell, Unknown Morgan, and Amanda Gibson.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendant(s)
David Howe, Bobby Currington, Timmy Jones, Unknown Russell, Unknown Morgan, and
Amanda Gibson 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.

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IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the complaint as to defendants Jonna Grubbs, Stan Jackson, or Jason Lewis 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 appropriate Order of Partial Dismissal shall accompany this Memorandum and Order.
Dated this 5th day of March, 2014.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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