Moore v. Slay et al

Filing 5

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $9.62 within thirty (30) days of the date of t his 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 plaintiffs motion for appointment of counsel [ECF No. 4 ] is DENIED. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. See 28 U.S.C. § 1915(e)(2)(B). Signed by District Judge Ronnie L. White on 11/08/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
VERNON HOWARD MOORE,
Plaintiff,
v.
FRANCIS G. SLAY, et al. ,
Defendants.

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No. 4:16-CV-1722 RLW

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 $9.62.

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Additionally, this action is dismissed pursuant to 28 U .S.C. § 1915(e).

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, a complaint must plead more than "legal conclusions" and

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Pursuant to 28 U.S.C. § 1915(b)(l), 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 . After payment of the initial partial filing fee, the prisoner is required to
make monthly payments 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. See 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 a prison account
statement; however, it only covers the last three month period prior to the filing of the complaint
in this Court. A review of plaintiff's account indicates an average monthly deposit of $48.11 , and
an average monthly balance of $30.25 . Plaintiff has insufficient funds to pay the entire filing
fee . Accordingly, the Court will assess an initial partial filing fee of $9.62, which is 20 percent
of plaintiff's average monthly deposit.

"[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.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
The Complaint

Plaintiff is an inmate at the St. Louis Medium Security Institution ("MSI"). He sues
Mayor Francis G. Slay, Jeffrey Carson and Jerome Fields.
Plaintiff claims that MSI has no legal library and he cannot proceed pro se for his
criminal trial because he is unable to do legal research on his claims. Plaintiff admits, however,
that he has been assigned a public defender in his criminal action.
Plaintiff seeks monetary damages and injunctive relief.
Discussion

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

a defendant's capacity, a Court must interpret the complaint as including official-capacity
claims); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989). Official-capacity suits are tantamount
to suits brought directly against the public entity of which the official is an agent. Kentucky v.

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Graham, 473 U.S. 159, 166 (1985). To state a claim against a public entity or a government

official in his or her official capacity, a plaintiff must allege that a policy or custom of the public
entity was responsible for the alleged constitutional violation. Brandon v. Holt, 469 U.S. 464,
473 (1985); Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978). Because
plaintiff does not claim that a public entity' s policy or custom was responsible for the alleged
constitutional violations, the complaint fails to state a claim or cause of action under § 1983 as to
defendants in their official capacities. As a result, these defendants must be dismissed.
As additional grounds for dismissing this action, the Court finds that plaintiffs
allegations do not rise to the level of a constitutional violation and are legally frivolous.
Plaintiffs claim that he was denied access to the law library, and hence access to the courts, is
legally frivolous, because he has alleged no facts indicating that he was thereby prejudiced. See
Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991); Grady v. Wilken , 735 F.2d 303, 306 (8th

Cir. 1984).
"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 has failed to allege that he has suffered an actual injury
to his criminal action in state court. And although he has alleged that he does not "trust" his
public defender, at this time he has appointed counsel in state court, as verified on Missouri
Case.Net. Thus, plaintiff is adequately represented in his criminal matter. See State v. Moore,
Case No. 1622-CR00169-01 (22nd Judicial Circuit).
To the extent plaintiff has attempted to allege an equal protection claim by stating that
one jail in St. Louis City has some legal research capability, while another jail does not, he has
failed to do so. A plaintiff must "allege and prove something more than different treatment by

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government officials" to state an equal protection claim. Batra v. Ed. of Regents of Univ. of

Nebraska, 79 F.3d 717, 721 (8th Cir. 1996). " [T]he key requirement is that plaintiff allege and
prove unlawful, purposeful discrimination." Id. at 722; see Albright v. Oliver, 975 F.2d 343, 348
(7th Cir.1992) ("you must be singled out because of your membership in the class, and not just
be the random victim of governmental incompetence"), aff'd on other grounds, 510 U.S. 266
(1994); Booher v. United States Postal Serv., 843 F.2d 943 , 944 (6th Cir.1988) (" [t]he equal
protection concept does not duplicate common law tort liability by conflating all persons not
injured into a preferred class"); Joyce v. Mavromatis , 783 F.2d 56, 57 (6th Cir.1986) (" [t]he
equal protection argument fails here because the wrong is not alleged to be directed toward an
individual as a member of a class or group singled out for discriminatory treatment").
Furthermore, " [l]iability under § 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 Ashcroft v. Iqbal, 556 U.S . 662, 676 (2009) ("Because vicarious liability is
inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official's own individual actions, has violated the Constitution.");

Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) ("a general responsibility for
supervising the operations of a prison is insufficient to establish the personal involvement
required to support liability."). There are no allegations that Francis Slay, Jerome Fields or
Jeffery Carson were directly responsible for an injury to plaintiff, i.e. denying him access to legal
materials on an individual basis. Rather, these individuals are being sued under the theory of

respondeat superior. As a result, plaintiffs allegations against defendants fail to state a claim
upon which relief can be granted.
Accordingly,

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IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.

IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $9.62
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. 2

IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel [ECF
No. 4] is DENIED.

IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. See 28
U.S.C. § 1915(e)(2)(B).
An Order of Dismissal will be filed separately.

Dated this %!:day of November, 2016.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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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. The agency
having custody of the prisoner will deduct the payments and forward them to the Court each time
the amount in the account exceeds $10. 28 U.S .C. § 1915(b)(2).

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