Boschert v. Sachse et al

Filing 5

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $29.33 within thirty (30) days from 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 r emittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue, because the complaint is legally frivolous and fails to state a claim upon which relief can be granted. See 28 U.S.C. ' 1915(e)(2)(B).A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Henry Edward Autrey on 12/14/15. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRANDON LEE BOSCHERT,
Plaintiff,
v.
JENNIFER SACHSE, et al.,
Defendants.

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No. 4:15CV1594 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the motion of Brandon Lee Boschert
(registration no. 1265571) for leave to commence this action without payment of the
required filing fee [Doc. #2]. After reviewing plaintiff’s financial information, the
Court will assess a $29.33 initial partial filing fee, which is twenty percent of
plaintiff’s six-month average deposit. Furthermore, based upon a review of the
complaint, the Court finds that this action should be dismissed pursuant to 28 U.S.C.
' 1915(e)(2)(B).
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 "lacks an arguable basis in

either law or fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). 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).

An

action fails to state a claim upon which relief can be granted 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 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
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judgment in determining whether plaintiff's conclusion is the most plausible or
whether it is more likely that no misconduct occurred. Id. at 1950-52.
Moreover, 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 (1992).
The Complaint
Plaintiff, an inmate at the Missouri Eastern Correctional Center ("MECC"),
seeks $1 million in actual damages and $2 million in punitive damages for the
violation of his constitutional rights under 42 U.S.C. ' 1983. Named as defendants
are Jennifer Sachse (MECC warden) and Dennis Nemeth (MECC parole officer).
Plaintiff summarily alleges that, on or about April 15, 2015, he was “repeatedly
sexually assaulted” by defendant Nemeth. Plaintiff further summarily alleges that
he was denied due process by defendant Sachse “who refused to rectify and protect
[plaintiff] from abuse under her supervision.” In addition, plaintiff claims that
other MECC employees helped “to cover and deny [his] claim” and engaged in
“retaliation causing more mental anguish and suffering.” Plaintiff states that he
was “continuously harassed and given [conduct violations] for frivolous charges.”

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Discussion
Having carefully reviewed the complaint, the Court concludes that dismissal
is warranted under 28 U.S.C. ' 1915(e)(2)(B). Plaintiff brings this action against
defendants in their official capacities.

See Egerdahl v. Hibbing Community

College, 72 F.3d 615, 619 (8th Cir. 1995) (where a complaint is silent about
defendant=s capacity, Court must interpret the complaint as including
official-capacity claims); 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. See Will v. Michigan Dep=t of State Police, 491 U.S. 58, 71 (1989).
A[N]either a State nor its officials acting in their official capacity are >persons= under
' 1983.@ Id. As a result, the complaint is legally frivolous and fails to state a claim
upon which relief can be granted as to all defendants, and therefore, the Court will
dismiss this action under 28 U.S.C. ' 1915(e)(2)(B).
As additional grounds for dismissing this action, the Court notes that
"[l]iability under section 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 also Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim
not cognizable under ' 1983 where plaintiff fails to allege defendant was personally
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involved in or directly responsible for incidents that injured plaintiff); Ashcroft v.
Iqbal, 556 U.S. at 678-79 (legal conclusions and threadbare recitals of the elements
of a cause of action that are supported by mere conclusory statements are not entitled
to the assumption of truth). Because plaintiff does not set forth any non-conclusory
facts indicating that defendants were directly involved in or personally responsible
for the violation of his constitutional rights, and because the respondeat superior
theory is inapplicable in ' 1983 actions, Boyd v. Knox, 47 F.3d 966, 968 (8th Cir.
1995), plaintiff's claims are legally frivolous.
Moreover, plaintiff's allegations relative to receiving conduct violations for
frivolous charges simply do not implicate constitutionally-protected interests,
because they do not indicate that plaintiff was subjected to an "atypical and
significant hardship . . . in relation to the ordinary incidents of prison life." Sandin
v. Conner, 515 U.S. 472 (1995). Plaintiff's allegations also do not indicate that he
has suffered the type of atypical and significant hardship in which the state might
conceivably create a liberty interest. Cf. id. at 485-86 (no atypical and significant
hardship where inmate spent thirty days in solitary confinement); Jones v. Baker,
155 F.3d 810, 812-13 (6th Cir. 1998) (same; two and a half years in administrative
segregation); Hemphill v. Delo, 124 F.3d 208 (8th Cir. 1997) (same; four days
locked in housing unit, thirty days in disciplinary segregation, and approximately
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290 days in administrative segregation); Freitas v. Ault, 109 F.3d 1335, 1337-38
(8th Cir. 1997) (same; ten days administrative segregation and thirty days on
"on-call" status, as well as loss of higher paying job and numerous privileges);
Wycoff v. Nichols, 94 F.3d 1187, 1190 (8th Cir. 1996) (same; ten days disciplinary
detention and 100 days in maximum-security cell); Moorman v. Thalacker, 83 F.3d
970, 973 (8th Cir. 1996) (same; fifteen days of highest-level disciplinary detention
and 107 days of less-restrictive disciplinary detention). For these reasons, this
action will be dismissed pursuant to ' 1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing
fee of $29.33 within thirty (30) days from 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 the Clerk shall not issue process or cause
process to issue, because the complaint is legally frivolous and fails to state a claim
upon which relief can be granted. See 28 U.S.C. ' 1915(e)(2)(B).
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A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 14th day of December, 2015

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HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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