Thomas v. Lang et al

Filing 6

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis (Docket No. 2 ) is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $9.11 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) the statement that the re mittance is for an original proceeding. IT IS FURTHER ORDERED that plaintiffs complaint is DISMISSED, without prejudice. IT IS FURTHER ORDERED that plaintiffs motion to appoint counsel (Docket No. 3 ) is DENIED as moot. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. A separate Order of Dismissal will accompany this Memorandum and Order.. Signed by District Judge Ronnie L. White on 12/27/2017. (NEP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBIN ANTHONY THOMAS,

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Plaintiff,
v.

JUDY LANG, et al.,
Defendants.

No. 4:17-cv-2906-PLC

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff Robin Anthony Thomas for
leave to commence this civil action without prepayment of the required filing fee.

Having

reviewed the motion and the financial information submitted in support, the Court has
determined to grant the motion, and assess an initial partial filing fee of $9.11. See 28 U.S.C.

§ 1915(b)(l). In addition, for the reasons discussed below, the Court will dismiss the complaint
without prejudice.
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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
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
$10.00, until the filing fee is fully paid. Id.
In support of the instant motion, plaintiff submitted an inmate account statement showing
an average monthly balance of $45.57. The Court will therefore assess an initial partial filing fee
of $9 .11, which is twenty percent of plaintiffs average monthly balance.

Background
The instant complaint is the second civil rights complaint plaintiff has filed in this Court
this year. On March 1, 2017, plaintiff filed a complaint seeking relief pursuant to 42 U.S.C. §
1983 against the St. Louis County Justice Center, Judy Lang, Christine Hattler, Gene Fitzgerald,
and Jane Doe. See Thomas v. St. Louis County Justice Center, Case No. 4:17-cv-815-NAB (E.D.
Mo. Apr. 21, 2017) (hereafter "Thomas I"). Plaintiff sought and was granted leave to proceed in
forma pauperis.

In the complaint, plaintiff alleged that he was incarcerated at the St. Louis

County Justice Center from November 13, 2012 through September 10, 2014; his bank card was
stored among his personal property in the property room; he designated one Michael Roberts as
the person authorized to receive the bank card following his transfer to the Missouri Department
of Corrections; Jane Doe intentionally and negligently released the bank card to one Lionel
Hardy; and Hardy fraudulently used the card. He also alleged that Christine Hattler helped him
fill out a property release form, and wrote down the 16 digits from his bank card for him at his
request. Plaintiff also alleged that Fitzgerald, Lang and Hardy responded inappropriately when
plaintiff tried to investigate the matter.
On April 21, 2017, the Court dismissed the case pursuant to 28 U.S.C. § 1915(e)(2)(B)
after determining that the complaint was frivolous and/or failed to state a claim upon which relief
could be granted. Plaintiff filed a notice of appeal in the United States Court of Appeals for the

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Eighth Circuit, but on October 30, 2017, the Court dismissed the appeal due to plaintiffs failure
to prosecute.
The Complaint

In the case at bar, plaintiff again seeks relief pursuant to 42 U.S.C. § 1983. He names
Judy Lang, Herbert Bernsen, Tina Hayler, Gene Fitzgerald, Jane Doe and Lionel Hardy as
defendants. The complaint sets forth nearly identical allegations as in Thomas I.
As in Thomas I, plaintiff states he was incarcerated at the St. Louis County Justice Center
from November 13, 2012 through September 10, 2014, and that his bank card was held among
his personal property. He states that Hayler wrote the 16 digits from the card on a piece of paper
for him so that he could buy telephone time. He states he was scheduled to be transferred to the
custody of the Missouri Department of Corrections, and he designated one Michael Roberts as
the person authorized to receive the bank card following his transfer. He states that Hayler
helped him complete a property release form. He alleges that Lang, Doe, Hayler, and/or Bernsen
negligently or intentionally released his bank card and some other property to Hardy, and that
Hardy fraudulently used the bank card. Finally, he alleges that Bernsen and Fitzgerald failed to
help him investigate and/or ignored his requests for forms.
Discussion

The instant complaint is based upon the same facts as the complaint in Thomas I, which
this Court dismissed pursuant to 28 U.S.C. § 1915(e). While the dismissal of Thomas I "does not
bar future litigation over the merits of a paid complaint making the same allegations as the
dismissed complaint," a § 1915(e) dismissal has res judicata effect and establishes that a
subsequent claim based upon the same facts is frivolous for purposes of§ 1915(e). Waller v.
Groose, 38 F.3d 1007, 1008 (8th Cir. 1994) (per curiam) (citing Denton v. Hernandez, 504 U.S.

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25 (1992)); see also Cooper v. Delo, 997 F.2d 376, 377 (8th Cir. 1993) (§ 1915(e) dismissal has
res judicata effect on future IFP petitions).

Accordingly, this Court determines the§ 1915(e)

dismissal of Thomas I has res judicata effect and establishes that this second complaint, based
upon the same facts, is frivolous for § 1915(e) purposes. The Court will therefore dismiss the
complaint.
In addition, as this Court determined in Thomas I, plaintiffs claim that his bank card was
intentionally released to Hardy does not establish a Due Process violation. The state of Missouri
provides an adequate post-deprivation remedy, and plaintiff does not allege that those remedies
were inadequate. See Hudson v. Palmer, 468 U.S. 517, 531-21 (1984) (If the deprivation of
property by prison officials is intentional and the state provides an adequate post-deprivation
remedy, there is no Due Process violation). Plaintiffs claim that his bank card was negligently
released to Hardy simply fails to implicate the Due Process Clause. See Daniels v. Williams, 474
U.S. 327, 328 (1986) (the "Due Process Clause is simply not implicated by a negligent act of an
official causing unintended loss of or injury to life, liberty, or property") (emphasis in original).
Plaintiffs allegations against Lionel Hardy do not state a claim under 42 U.S.C. § 1983 because
plaintiff does not allege, nor is it apparent, that Hardy was acting under color of state law. See
West v. Atkins, 487 U.S. 42, 48 (1988) (to state a claim under 42 U.S.C. § 1983, a plaintiff must

establish: (1) the violation of a right secured by the Constitution or laws of the United States, and
(2) that the alleged deprivation of that right was committed by a person acting under color of
state law). Finally, plaintiffs allegations that Hayler wrote down the 16 digits from the card for
him and helped him complete a form, and his claims that Bernsen and Fitzgerald failed to help
him investigate and/or ignored his requests for forms, do not establish the violation of a right
secured by the Constitution or laws of the United States.

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Accordingly,

IT IS HEREBY ORDERED that plaintiffs motion to proceed m forma pauperis
(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $9.11 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) the statement that the remittance is for an
original proceeding.

IT IS FURTHER ORDERED that plaintiffs complaint is DISMISSED, without
prejudice.

IT IS FURTHER ORDERED that plaintiffs motion to appoint counsel (Docket No. 3)
is DENIED as moot.

IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
A separate
Dated

O~ Dismissal

will accompany this Memorandum and Order.

thi~ day of December, 2017.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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