Smith v. Missouri Board of Probation and Parole

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 $20 within twenty-one (21) days of the date o f 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 this action is DISMISSED without prejudice. An Order of Dismissal will be filed forthwith. Signed by District Judge Jean C. Hamilton on 3/22/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERRN DIVISION
BOBBY LEE SMITH,
Plaintiff,
v.
MISSOURI BOARD OF PROBATION
AND PAROLE,
Defendant.

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No. 4:17-CV-999 JCH

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 $20, which is twenty percent of his average monthly deposit. See 28 U.S.C.
§ 1915(b). Additionally, this action is dismissed.
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.
Discussion
Plaintiff brings this action against the Missouri Board of Probation and Parole, alleging
that it has violated his right to due process by refusing to grant him conditional release. He says
other inmates with multiple murder convictions have been released, so he believes he is being
denied equal protection under the law. He also claims that the Board has wrongly withheld
parole because of community opposition.
“[A]n inmate does not have a constitutionally-protected liberty interest in the possibility
of parole, and [the United States Court of Appeals for the Eighth Circuit] has held that the
Missouri parole statutes ‘create no liberty interest’ under state law in the parole board’s
discretionary decisions.” Adams v Agniel, 405 F.3d 643, 645 (8th Cir. 2005) (citing Greenholtz
v. Inmates of Nebraska Penal & Corrections, 442 U.S. 1, 9-11, (1979)). Therefore, he has not
stated a plausible claim for violation of his right to due process.
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

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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”). Plaintiff
has not alleged that he has been discriminated against because of his membership in a class. As
a result, this action is frivolous.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s 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 $20
within twenty-one (21) 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.1
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice.
An Order of Dismissal will be filed forthwith.
Dated this 22nd day of March, 2017.
\s\ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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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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