Proby v. Russell et al

Filing 6

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's request for an order to show cause for a preliminary injunction and a tem porary restraining order [ECF No. 5 ] is DENIED without prejudice. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $15.74 within thirty (30) days of the date of this Order....IT IS FURTHER ORDERED that the Clerk shall otherwise issue process or cause process to issue upon the complaint as to defendants... An Order of Partial Dismissal will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 10/10/14. (JWD) (Main Document 6 replaced on 10/10/2014) (JWD). Modified on 10/10/2014 to replace incorrect document with correct document (JWD).

Case: 4:14-cv-01620-JAR Doc. #: 6 Filed: 10/10/14 Page: 1 of 10 PageID #: 142
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GEORGE PROBY, JR.,

Plaintiff,
v.
TERRY RUSSELL, et. al.,

Defendants.

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No. 4:14-CV-1620-JAR

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of George Proby, Jr. (registration no.
1237464), an inmate at Jefferson City 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 $15.74. 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 portions of the complaint that state claims upon which relief can be
granted.
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

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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 $31.58, and an average monthly
balance of $78.74. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the
Court will assess an initial partial filing fee of $15.74, 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 may 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 against a defendant who is immune from such relief. An action
is frivolous if “it lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S.
319, 328 (1989). An action is malicious when it is undertaken for the purpose of harassing
litigants 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.

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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 proffered conclusion is the most
plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951–52.
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint
the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court
must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly
baseless. Denton v. Hernandez, 504 U.S. 25, 32–33 (1992); Scheuer v. Rhodes, 416 U.S. 232,
236 (1974).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983. Defendants are officials of the
Eastern Reception Diagnostic and Correctional Center (“ERDCC”), the Jefferson City
Correctional Center (“JCCC”), and the Missouri Department of Corrections.

Named as

defendants are T. Russell (Warden, ERDCC); J. Wilson (Deputy Warden, ERDCC); Butterworth
(Functional Unit Manager, ERDCC, employee number 36330); J. Wallen (Correctional Officer,
ERDCC); F. Nelson (Correctional Officer, ERDCC); P. Jones (Correctional Officer, ERDCC); J.
Elless (Correctional Officer, ERDCC); J. Nicholson (Investigator, ERDCC); J. Cassady
(Warden, JCCC); P. Gore (Functional Unit Manager, JCCC); G. Humphrey (Functional Unit
Manager, JCCC); E. Ruppel (Case Manager, JCCC); S. Kintner (Case Manager, JCCC); B.
Schmultz (Case Manager, JCCC); N. Obi (Case Manager, JCCC); C. Marks (Librarian, JCCC);

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D. Hall (Correctional Officer, JCCC); J. White (Supervisor of Mental Health, JCCC); and A.
Earls (Director, Missouri Department of Corrections).
Plaintiff alleges that he was assaulted by another inmate at JCCC on October 17, 2012.
According to plaintiff, following the assault, defendant Nelson falsely alleged that plaintiff
kicked him in the head during the ensuing struggle, and defendant Elless falsely alleged that
plaintiff kicked the other inmate in the head.

Plaintiff asserts that these allegedly false

allegations were included in reports prepared, or contributed to, by defendants Nelson, Elless,
Jones, and Nicholson.
According to plaintiff, defendant Butterworth held a disciplinary hearing without
plaintiff’s knowledge, which resulted in plaintiff’s placement in solitary confinement in a Special
Housing Unit (“SHU”). Plaintiff claims that defendant Butterworth intentionally concealed
exculpatory video and documentary evidence. Plaintiff alleges that defendants Wilson, Russell,
and Wallen participated in the decision to conceal the allegedly exculpatory evidence, and that
Wilson and Russell approved Butterworth’s decision to place plaintiff in the SHU.
Plaintiff asserts that he was transferred to JCCC on November 6, 2012, and placed in the
SHU on November 8, 2012. According to plaintiff, defendant Nicholson interviewed him at
JCCC on February 19, 2013, and informed plaintiff that there was no video footage of the
October 17, 2012 incident. Several internal documents generated by defendants indicate that
video footage did in fact exist.
On February 12, 2013, plaintiff was formally charged with a felony for “violence to an
employee of DOC or to an inmate by an inmate.” Plaintiff claims that, pursuant to his discovery
request, he was provided with exculpatory video and documentary evidence of the October 17,
2012 incident. A jury trial was held on October 22, 2013, and plaintiff was found not guilty of

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the charges.

Plaintiff asserts that his acquittal was based on the exculpatory video and

documentary evidence.
According to plaintiff, he is still being held in solitary confinement in the SHU in JCCC.
Plaintiff alleges that defendants Earls, Gore, Humphrey, Ruppel, Cassady, Schmultz, and Kintner
have all sat on the classification committee charged with reviewing plaintiff’s confinement in the
SHU and have refused to review the allegedly exculpatory video evidence or to release plaintiff
from solitary confinement.
Plaintiff alleges that he was placed in solitary confinement without due process as a result
of the assault, subsequent false reports, and defendants’ concealment of exonerating
documentary and video evidence. Further, plaintiff alleges that individual defendants retaliated
against him, were deliberately indifferent to his mental health needs, interfered with his access to
court, and violated his Eighth Amendment rights.
Discussion
After carefully reviewing the complaint, the Court finds that plaintiff’s claims against
defendants Russell, Wilson, Butterwoth, Wallen, Nelson, Jones, Elless, Nicholson, Cassady,
Gore, Humphrey, Ruppel, Kintner, Schmultz, Obi, Hall, and Earls, in their individual capacities,
survive review under 28 U.S.C. § 1915(e). As a result, the Court will direct the Clerk to serve
process on these defendants. However, the Court will dismiss the Complaint under § 1915(e) as
to defendants White and Marks.
A.

Procedural Due Process
Plaintiff has alleged sufficient facts against defendants Nelson, Jones, Elless, Nicholson,

Butterworth, Wilson, Russell, Wallen, Earls, Gore, Humphrey, Ruppel, Cassady, Schmultz, and
Kintner, in their individual capacities, to state a procedural due process claim. For the Due
Process Clause to be implicated, an inmate must be subjected to “atypical and significant

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hardship . . . in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472
(1995). Plaintiff has alleged that he has been prohibited from having any personal property, or
privileges enjoyed by other inmates in administrative segregation and general population, such as
access to recreational activities. Further, he alleges that he has no real human contact, and that
he is locked in his cell twenty-four hours a day with bright lights shining. He alleges that he has
been so confined for nearly two years. These allegations, taken together, are sufficient to
establish “atypical and significant hardship,” or, stated differently, “conditions [that] give rise to
a liberty interest in their avoidance.” See Wilkinson v. Austin, 545 U.S. 209, 223–24 (2005).
Accordingly, because plaintiff has sufficiently alleged the deprivation of a liberty interest, and
has alleged that he was not given notice or the opportunity to be heard, plaintiff has stated a
procedural due process claim. See id. at 229 (citing Hewitt v. Helms, 459 U.S. 460, 473–76
(1983)).
B.

Retaliation
Plaintiff has also alleged a First Amendment relation claim against defendants Cassady,

Hall, and Obi. To succeed on his retaliation claim, plaintiff must prove that he engaged in
protected activity and that defendants, to retaliate for the protected activity, took adverse action
against plaintiff that would chill a person of ordinary firmness from engaging in that activity.
See Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir.2004), cert. denied, 546 U.S. 860 (2005).
Plaintiff asserts that these defendant retaliated against him for preparing this action and utilizing
the grievance process by harassing him, tampering with his mail, and destroying his mail. These
allegations are sufficient to state a claim for retaliation against defendants Cassady, Hall and Obi.
C.

Deliberate Indifference to Mental Health Needs
Additionally, plaintiff has alleged a claim against defendant White for deliberate

indifference to his mental health needs in violation of the Eighth Amendment. To state a claim

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for medical mistreatment, plaintiff must plead facts sufficient to indicate a deliberate indifference
to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Camberos v. Branstad, 73
F.3d 174, 175 (8th Cir. 1995). Allegations of mere negligence in giving or failing to supply
medical treatment will not suffice. Estelle, 429 U.S. at 106. In order to show deliberate
indifference, plaintiff must allege that he suffered objectively serious medical needs and that
defendants actually knew of but deliberately disregarded those needs. Dulany v. Carnahan, 132
F.3d 1234, 1239 (8th Cir. 1997). Plaintiff asserts that defendant White, as the Supervisor of the
Mental Health at JCCC, intentionally denied him mental health counseling and treatment by
ignoring his requests, despite the fact that he has been in solitary confinement for nearly two
years. However, plaintiff has failed to assert an objectively serious medical need, instead only
broadly alleging that he is mentally disabled and his condition has worsened. Thus, plaintiff has
failed to state a claim for deliberate indifference against defendant White.
D.

Access to Court
Plaintiff alleges that defendants Obi, Marks, and Hall have impeded his access to courts.

“To state a claim [for denial of meaningful access to the courts], inmates must assert that they
suffered an actual injury to pending or contemplated legal claims.” Myers v. Hundley, 101 F.3d
542, 544 (8th Cir. 1996). Plaintiff received a letter from defendant Marks on August 26, 2014,
informing him that his “Qualified Legal Claim” ended on August 20, 2014, and that he could not
receive legal materials until he has an active “Qualified Legal Claim.” [ECF. NO. 5-2 at 1].
Presumably, the Court’s granting of plaintiff’s motion to proceed in forma pauperis in this
matter, as well as in Proby v. Bullock, 4:14-CV-1355-HEA (E.D. Mo.), will constitute
“Qualified Legal Claims,” which will allow plaintiff access to legal materials. Thus, plaintiff has
not alleged facts demonstrating that he has suffered prejudice to a pending or contemplated legal
claim and, therefore, has failed to state an access to courts claim. See Lewis v. Casey, 518 U.S.

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343, 349–55 (1996). For the same reason, the Court will deny plaintiff’s request for the Court to
enter an order to show cause why it should not issue a preliminary injunction and a temporary
restraining order with regard to his access to courts claims.
E.

Eighth Amendment Claims
Plaintiff’s conclusory claims for violations of his Eighth Amendment rights are also

subject to dismissal. To state a claim for unconstitutional conditions of confinement under the
Eighth Amendment, an inmate must show that the alleged deprivations denied him the minimal
civilized measure of life’s necessities and that the defendants were deliberately indifferent to
excessive risk to his health or safety. See, e.g., Seltzer-Bey v. Delo, 66 F.3d 961, 964 (8th Cir.
1995) (“Eighth Amendment does not absolutely bar placing an inmate in a cell without clothes or
bedding.”). Plaintiff has made no such allegations here.
F.

Official Capacity
Finally, plaintiff’s claims against defendants in their official capacities do not state a

claim for relief. 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, the complaint fails
to state a claim upon which relief can be granted against defendants in their official capacities.
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’s request for an order to show cause for
a preliminary injunction and a temporary restraining order [ECF No. 5] is DENIED without
prejudice.

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IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $15.74
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 otherwise issue process or cause
process to issue upon the complaint as to defendants Russell, Wilson, Butterwoth, Wallen,
Nelson, Jones, Elless, Nicholson, Cassady, Gore, Humphrey, Ruppel, Kintner, Schmultz, Obi,
Hall, and Earls in their individual capacities. Defendants shall be served according to the waiver
agreement the Court maintains with the Missouri Attorney General’s Office.
IT IS FURTHER ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), defendants
Russell, Wilson, Butterwoth, Wallen, Nelson, Jones, Elless, Nicholson, Cassady, Gore,
Humphrey, Ruppel, Kintner, Schmultz, Obi, Hall, and Earls 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.
IT IS FURTHER ORDERED that plaintiff’s claims against defendants Marks and White
are subject to dismissal 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 plaintiff’s claims for access to courts are subject to
dismissal because these claims are legally frivolous or fail to state a claim upon which relief can
be granted, or both.

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IT IS FURTHER ORDERED that plaintiff’s claims for purported unlawful conditions
of confinement under the Eighth Amendment are subject to dismissal because these claims are
legally frivolous or fail to state a claim upon which relief can be granted, or both.
IT IS FURTHER ORDERED that plaintiff’s official-capacity claims are subject to
dismissal because these claims are legally frivolous or fail 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 accompany this Memorandum and Order.
Dated this 10th day of October, 2014.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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