Dayton v. Lisenbee et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF No. 3 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $4.70 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. An order of dismissal will be filed separately. Signed by District Judge Carol E. Jackson on 12/8/16. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
RICHARD LISENBEE, et al.,
No. 4:16-CV-1789 CEJ
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 $4.70, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, for the reasons set forth below, this action will be dismissed without
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
“[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.
Plaintiff brings this action against Richard Lisenbee, Matt Shults, and Unknown Lortts,
all of whom are employed by the Phelps County jail. According to the complaint, the jail
requires inmates to submit written request forms in order to access the library. Plaintiff alleges
that there was a delay in his receipt of a request form and that when he submitted the form he
was told by an unidentified jail employee that it was “too late.” As a result, plaintiff was denied
access to the library. Plaintiff filed a grievance. In response, Lortts took plaintiff out of his cell
and told plaintiff that going to the law library was a privilege, not a right. Lortts also stated that
due to overcrowding at the jail, access to the library was “first come first serve [sic].”
Plaintiff asserts that Lortts’ statements violated his rights. He also claims that his right
to equal protection has been violated because other offenders from the same housing unit were
allowed to go to the law library. Further, plaintiff seeks to hold defendants Lisenbee and Shults
liable because they have a responsibility to oversee the jail’s operations.
“Liability 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 defendants Lisenbee or Shults interfered with plaintiff’s access to the law library.
As a result, the complaint does not state a plausible claim against them.
“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.” George v. Smith, 507 F. 3d 605, 609 (7th Cir. 2007) (citations omitted). Regardless
of whether Lortts was correct about plaintiff’s right of access to the law library, his response to
plaintiff’s grievance did not constitute a constitutional violation.
Finally, a plaintiff must “allege and prove something more than different treatment by
government officials” to state an equal protection claim. Batra v. Bd. 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”).
has not alleged that he was singled out because of his membership in a class. As a result, his
equal protection claim is frivolous.
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [ECF
No. 3] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $4.70
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
An order of dismissal will be filed separately.
Dated this 8th day of December, 2016.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Prisoners must pay the full amount of the $350 filing fee. 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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