Smotherman v. Missouri Department of Corrections et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED plaintiff's motion to withdraw his appeal [Doc. # 12 ] is GRANTED. IT IS FURTHER ORDERED that the Order of Dismissal in this action entered on September 7, 2017 [Doc. # 3 ] is VACATED and this matter is REOPENED. IT IS FURTHER ORDERED that plaintiffs motion to proceed in forma pauperis on appeal [Doc. # 9 ] is DENIED AS MOOT. IT IS FURTHER ORDERED that the Court will allow plaintiff to proceed in forma pauperis in this matter based on the submiss ion of his prison account statement. [Doc. # 10 ]IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $38.11 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to & quot;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 pursuant to 28 U.S.C. § 1915(e)(2)(B). An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 4/9/2018. (CLO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MISSOURI DEPT. OF CORR., et al.,
No. 4:17-CV-1982 JAR
MEMORANDUM AND ORDER
Before the Court is plaintiffs motion to withdraw his appeal. The Court will grant
plaintiffs motion. Additionally, as plaintiff has submitted his account statement, the Court will
vacate its dismissal of this action and reopen the present matter for review of plaintiffs
complaint pursuant to 28 U.S.C.§ 1915.
Plaintiff is currently serving his Missouri sentence at the Boonville Treatment Center.
The Court will interpret plaintiffs submission of his account statement as a request for leave to
proceed in forma pauperis in this matter. For the reasons stated below, the Court finds that
plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial
filing fee of $38.11. See 28 U.S.C. § 1915(b)(l). Furthermore, based upon a review of the
complaint, the Court finds that the complaint should be dismissed pursuant to 28 U.S.C. §
28 u.s.c. § 1915(b)(l)
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 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. 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. 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 an affidavit and a certified copy of his prison account statement
for the six-month period immediately preceding the submission of his complaint. A review of
plaintiffs account indicates an average monthly deposit of $190.59. Plaintiff has insufficient
funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of
$38.11, which is 20 percent of plaintiffs average monthly deposit.
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 "it lacks an arguable basis in either law or in fact." Neitzke v. Williams, 490 U.S.
319, 328 (1989). An action is malicious when it is undertaken for the purpose of harassing
litigants and not for the purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F.
Supp. 458, 461-63 (E.D.N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987).
To determine whether an action fails to state a claim upon which relief can be granted,
the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the
complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950-51 (2009). These include "legal conclusions" and "[t]hreadbare recitals of the elements of
a cause of action [that are] supported by mere conclusory statements." Id. at 1949. Second, the
Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a "context-specific task that requires the reviewing court to draw on its judicial
experience and common sense." Id. at 1950. The plaintiff is required to plead facts that show
more than the "mere possibility of misconduct."
The Court must review the factual
allegations in the complaint ''to determine if they plausibly suggest an entitlement to relief." Id.
at 1951. When faced with alternative explanations for the alleged misconduct, the Court may
exercise its judgment in determining whether plaintiffs proffered conclusion is the most
plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil
rights. Named as defendants are: the Missouri Department of Corrections ("MDOC"); David
Hawanchak (Correctional Officer at Eastern Diagnostic and Corrections Center ("ERDCC");
Steven Bradley (Correctional Officer at ERDCC); John Doe and Jane Doe.
Plaintiff asserts that during his incarceration at ERDCC in July of 2015, Correctional
Officer Hawanchak wrote him up for two purportedly fraudulent conduct violations. Plaintiff
states that Hawanchak claimed that during a cell search of plaintiffs cell he found a crumpled up
piece of paper in the trash with the words, "Break a hoe cuz a hustle on da lou ant tryna go for
broke so both can on a stroll if you don't ima cut you throat!" Hawanchak claimed he also found
a ''tag" on plaintiffs cell wall that stated, "Horse Shoe Posse Blood." Plaintiff was written up
for an alleged threat, as a result of the words on the crumpled up paper, as well as destroying
state property for the "tag" on the wall.
Plaintiff asserts that he was given three-hundred (300) days in "the hole," or in
administrative segregation, for the conduct violations, as well as loss of "good time credit." He
claims he was not afforded due process during the hearing on his conduct violation. Plaintiff's
defense to the charges on his violations is that the words on the page were song lyrics from an
approved list of music at the prison. He asserts that the words on the wall were there prior to him
being assigned to the cell.
Plaintiff claims that because he was in administrative segregation serving time on his
conduct violations, he was taken to his parole hearing in "shackles and restraints." He also
asserts that he was denied the ability to bring witnesses on his behalf at the hearing on his
Plaintiff seeks damages for loss of his good time credits, as well as the time he spent in
For the Due Process Clause to be implicated, an inmate subjected to administrative
segregation must have been subjected to "atypical and significant hardship ... in relation to the
ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472 (1995). In order to determine
whether plaintiff "possesses a liberty interest, [the Court must] compare the conditions to which
[plaintiff] was exposed in segregation with those he . . . could 'expect to experience as an
ordinary incident of prison life."' Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (quoting
Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997)). In this context, the Court "do[es] not
consider the procedures used to confine the inmate in segregation." Id. (citing Kennedy v.
Bankenship, 100 F.3d 640, 643 (8th Cir. 1996)). For plaintiff "to assert a liberty interest, he
must show some difference between [the] conditions in segregation and the conditions in the
general population which amounts to an atypical and significant hardship." Id Plaintiff makes
no such assertions in the complaint. As such, he has failed to show that he was subjected to a due
Furthermore, plaintiffs allegations do not indicate that he has suffered the type of
atypical and significant hardship which might conceivably create a liberty interest as indicated in
the case law. See Sandin, 515 U.S. at 485-86 (no atypical and significant hardship where inmate
spent thirty days in solitary confinement); Hemphill v. Delo, 124 F.3d 208 (8th Cir. 1997)
(unpublished) (same; four days locked in housing unit, thirty days in disciplinary segregation,
and approximately 290 days in administrative segregation); Freitas v. Ault, 109 F.3d 1335, 133738 (8th Cir. 1997) (same; ten days administrative segregation and thirty days on "on-call" status,
as well as loss of higher paying job and numerous privileges); Wycoffv. Nichols, 94 F.3d 1187,
1190 (8th Cir. 1996) (same; ten days disciplinary detention and 100 days in maximum-security
cell); Moorman v. Thalacker, 83 F.3d 970, 973 (8th Cir. 1996) (same; fifteen days of highestlevel disciplinary detention and 107 days of less-restrictive disciplinary detention). As a result,
plaintiff has failed to allege that defendants have infringed upon a constitutionally protected
liberty interest, and the complaint will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
Additionally, plaintiff does not have a constitutional right to conditional release or "good
time credits." See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S.
1, 7 (1979) ("There is no constitutional or inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence."); Dace v. Mickelson, 816 F .2d 1277, 1280-81
(8th Cir. 1987). As a result, plaintiff's due process claim with regard to his loss of good time
credits fails as a matter of law.
In light of the aforementioned, plaintiffs complaint will be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B).
IT IS HEREBY ORDERED plaintiffs motion to withdraw his appeal [Doc. #12] is
IT IS FURTHER ORDERED that the Order of Dismissal in this action entered on
September 7, 2017 [Doc. #3] is VACATED and this matter is REOPENED.
IT IS FURTHER ORDERED that plaintiffs motion to proceed in forma pauperis on
appeal [Doc. #9] is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Court will allow plaintiff to proceed in forma
pauperis in this matter based on the submission of his prison account statement. [Doc. #10]
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $38.11
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
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 9th day of April, 2018.
STATES DISTRICT JUDGE
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