Wagner v. Gober et al

Filing 8

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis isGRANTED. [Doc. 3 ]IT IS FURTHER ORDERED that plaintiff's second motion for leave to proceed informa pauperis is DENIED as moot. [Doc. 6 ]IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $4.25within 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 is directed to serve process on defendant James Gober. IT IS FURTHER ORDERED that pl aintiff's official-capacity claims are DISMISSED. IT IS FURTHER ORDERED that defendants Richard Gaines, Tamera White, Gregory Rhodes, Melissa White, Randy Comden, Brad Burd, Robert Warner, Tom Villmer, Dwayne V. Kempker, Robert Killian, Unknown House, John/Jane Doe Assistant Warden, Paul Blair, Whitney Tucker, and Unknown Employee #E0057419 are DISMISSED from this action without prejudice. IT IS FURTHER ORDERED that plaintiffs motion for injunction is DENIED as moot. [Doc. 5 ] Signed by District Judge Charles A. Shaw on 12/21/15. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BENJAMIN WILLIAM WAGNER,
Plaintiff,
v.
JAMES GOBER, et al.,
Defendants.

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No. 4:15-CV-1789 CAS

MEMORANDUM AND ORDER
Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under 42
U.S.C. § 1983. Having reviewed plaintiff’s financial information, the Court assesses a partial
initial filing fee of $4.25, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b).
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief under § 1983, a complaint must plead more than “legal conclusions”
and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief [is] a

context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
The Complaint
Plaintiff sues defendants for denial of access to the courts and for violations of his right
to due process. Plaintiff alleges that on October 15, 2014, defendant James Gober placed him in
temporary administrative segregation (“TASC”) because he was under investigation. Plaintiff
says that defendant Robert Wagner took his legal materials from him, which caused him to miss
a court deadline. Plaintiff claims his equal protection rights were violated when other inmates
were released from TASC but he was not. Plaintiff claims that defendants violated Department
of Corrections’ policy by not completing required reports, not allowing him to introduce
evidence at classification hearings, not giving him his TASC report, not disclosing the nature of
the investigation, and not granting his grievances. Plaintiff believes these policy violations
amounted to violations of the Due Process Clause. Plaintiff was released from administrative
segregation on January 22, 2015.
Plaintiff claims he was placed in TASC again on October 14, 2015, pending another
investigation. He repeats the same policy violations as recited above.
Discussion
The complaint states a plausible claim for denial of access to the courts. Therefore, the
Court will issue process on defendant Gober in his individual capacity.
Plaintiff sues Gober in both his individual and official capacities. Naming a government
official in his or her official capacity is the equivalent of naming the government entity that

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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 defendant in his official capacity.
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
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). Moreover, violations of the Department
of Corrections’ policies do not amount to violations of the Due Process Clause. See Kennedy v.
Blankenship, 100 F.3d 640, 643 (8th Cir. 1996). As a result, plaintiff’s claims regarding his
placement in TASC do not state a claim upon which relief can be granted, and the remaining
defendants are dismissed.
Plaintiff’s equal protection claim also fails to state a claim upon which relief can be
granted. To establish an equal protection claim, “a prisoner must show that he is treated
differently from similarly-situated inmates and that the different treatment is based upon either a
suspect classification or a ‘fundamental right.’” Patel v. U.S. Bureau of Prisons, 515 F.3d 807,
815 (8th Cir. 2008). Plaintiff has made no such allegations.

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Additionally, plaintiff’s claims regarding the denial of grievances do not state a claim
upon which relief can be granted. See George v. Smith, 507 F. 3d 605, 609 (7th Cir. 2007)
(“Only persons who cause or participate in the [constitutional] violations are responsible. Ruling
against a prisoner on an administrative complaint does not cause or contribute to the violation.”).
Finally, plaintiff has filed a motion for injunction directing defendants to release him
from administrative segregation. The motion is moot in light of the dismissal of his due process
claims.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis is
GRANTED. [Doc. 3]
IT IS FURTHER ORDERED that plaintiff’s second motion for leave to proceed in
forma pauperis is DENIED as moot. [Doc. 6]
IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $4.25
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.

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IT IS FURTHER ORDERED that the Clerk is directed to serve process on defendant
James Gober.
IT IS FURTHER ORDERED that plaintiff’s official-capacity claims are DISMISSED.
IT IS FURTHER ORDERED that defendants Richard Gaines, Tamera White, Gregory
Rhodes, Melissa White, Randy Comden, Brad Burd, Robert Warner, Tom Villmer, Dwayne V.
Kempker, Robert Killian, Unknown House, John/Jane Doe Assistant Warden, Paul Blair,
Whitney Tucker, and Unknown Employee #E0057419 are DISMISSED from this action without
prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion for injunction is DENIED as
moot. [Doc. 5]

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 21st day of December, 2015.

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