Caldwell v. Conway et al

Filing 6

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 filing fee of $4.85 within thirty (30) days of the date of th is 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 upon the complaint, because the complaint is legally frivolous and fails to state a claim upon which relief can be granted. See 28 U.S.C. &# 167; 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. # 4 ] is DENIED as moot. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on 2/3/2016. (CBL)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION KEVIN CALDWELL, Plaintiff, v. SANDY CONWAY, et al., Defendants. ) ) ) ) ) ) ) ) ) No. 4:15-CV-1895-CDP MEMORANDUM AND ORDER This matter is before the Court on review of plaintiff’s motion for leave to proceed in forma pauperis [Doc. #2]. The motion will be granted, and plaintiff will be assessed an initial partial filing fee of $4.85, which is twenty percent of his average six-month deposit. Furthermore, after reviewing the complaint, and for the reasons set forth below, 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 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 Ait lacks an arguable basis in either law or in fact.@ Neitzke v. Williams, 490 U.S. 319, 328 (1989). 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). 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). The Complaint Plaintiff, an inmate at the Potosi Correctional Center (“PCC”), brings this 42 U.S.C. ' 1983 action for alleged constitutional violations against PCC employees Sandy Conway, Unknown Crawford, Unknown Francis, Unknown Savage, Cindy Griffith, and Dewayne Kempker. Plaintiff complains that he received an “unauthorized property notice” upon his arrival at PCC in April 2015, resulting in the confiscation of various items of his personal property. According to the “Informal Resolution Response,” which plaintiff attached to the complaint, he was advised that he would “be allowed to either send these items out through the mail or 2 on a visit.” Plaintiff seeks the return of his property and $750,000 in monetary damages. Discussion Having carefully reviewed the complaint, the Court concludes that dismissal is warranted under 28 U.S.C. ' 1915(e)(2)(B). Plaintiff is bringing 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, 491 U.S. at 71. 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. As additional grounds for dismissing this action, the Court finds that, to the extent plaintiff is attempting to assert a due process claim based on the loss of property, the allegations fail to state a claim cognizable under ' 1983 and are legally frivolous. Although the Due Process Clause may be implicated when a prisoner 3 suffers a loss of property, if the taking of property by prison officials is intentional and the state provides an adequate postdeprivation 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). Plaintiff does not allege that he lacks an adequate postdeprivation remedy, and, in fact, the State of Missouri provides the postdeprivation remedy of replevin for the recovery of personal property. See Mo. R. Civ. P. 99.01 - 99.15. For these reasons, the Court will dismiss this action under 28 U.S.C. ' 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 filing fee of $4.85 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to AClerk, 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 upon the complaint, because the complaint is legally frivolous and 4 fails to state a claim upon which relief can be granted. See 28 U.S.C. ' 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel [Doc. #4] is DENIED as moot. A separate Order of Dismissal shall accompany this Memorandum and Order. Dated this 3rd day of February, 2016. UNITED STATES DISTRICT JUDGE 5

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