Thrasher v. State of Missouri Department of Corrections et al

Filing 6

REPORT AND RECOMMENDATION that 1 MOTION for temporary restraining order filed by David Thrasher be denied; claims be dismissed, pursuant to 28 U.S.C. 1915A, for failure to state a claim for which relief can be granted. Objections to R&R due by 11/17/2008. Signed by Magistrate Judge William A. Knox on 10/28/2008. (skb)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

DAVID THRASHER, No. 44415, Plaintiff, v. STATE OF MISSOURI DEPARTMENT OF CORRECTIONS, et al., Defendants.

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No. 08-4223-CV-C-NKL

REPORT AND RECOMMENDATION Plaintiff David Thrasher, an inmate confined in a Missouri penal institution, brought this case under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its corresponding jur isdictional statute, 28 U.S.C. § 1343. 1 Named as defendants are the State of Missouri Depar tment of Corrections and Jefferson City Correctional Center. Plaintiff requests a temporary restraining order, but does not state what the TRO is to pr otect against or what his underlying claim is other than to "petition the courts." Plaintiff asks the court to order defendants to stop "(a) rendering unwritten `DECISION' 9/2/08 upon Plaintiff that is depriving him from exercising administrative exhaustion process violates his due process right . . . when such process was not made available to all inmates 9/2/08, r egar dless of their disciplinary or other classifications before Plaintiff bring his case to court, use a grievance system;." (Citation omitted.) Based on his inmate account information, plaintiff has been granted provisional leave to pr oceed without prepaying the filing fee and costs, subject to modification pursuant to the scr eening process required by 28 U.S.C. §§ 1915 and 1915A. Pursuant to the Prison Litigation Reform Act, the court is required to screen prisoner cases and must dismiss a

This case was referred to the undersigned United States Magistrate Judge for pr ocessing in accord with the Magistrate Act, 28 U.S.C. § 636, and L.R. 72.1.

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complaint, or any portion of the complaint, if satisfied that the action is frivolous, malicious, or fails to state a claim under which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1) and (2). Additionally, under section 1915(g), if a prisoner, while incarcerated, has had three cases dismissed on any of these grounds, the court must deny leave to proceed under section 1915(a). The only exception to the successive petition clause is when the prisoner faces "imminent danger of ser ious physical injury." 28 U.S.C. § 1915(g). Plaintiff is apparently challenging the grievance procedure which requires exhaustion of administr ative remedies prior to filing suit. Title 42 U.S.C. § 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Exhaustion of all administrative r emedies as set forth by the Missouri Department of Corrections Offender Grievance Pr ocedur es must be completed prior to a prisoner filing suit. See Johnson v. Jones, 340 F.3d 624, 628 (8th Cir. 2003) (dismissal is required under section 1997e(a) if an inmate has failed to exhaust all available administrative remedies prior to filing suit). Woodford v. Ngo, 548 U.S. 81 (2006) (section 1997e(a) requires proper exhaustion of administrative remedies). A pr isoner must complete the administrative review process in accordance with applicable pr ocedur al rules, including deadlines, as a precondition to bringing suit in federal court. Id. Mor eover , the Missouri Department of Corrections and Jefferson City Correctional Center , as entities of the State of Missouri, are not persons within the meaning of the Civil Rights Act, 42 U.S.C. § 1983. See Harris v. Missouri Court of Appeals, Western Dist., 787 F . 2d 427, 429 (8th Cir. 1986). They also have Eleventh Amendment immunity and are not subject to an action for damages or equitable relief. Pennhurst State School & Hosp. v. Halder man, 465 U.S. 89 (1984). Based on the Eleventh Amendment, damages are not recoverable against the State, the Depar tment of Corrections or state officials acting in their official capacities. Nix v. Norman, 879 F.2d 429, 432-33 (8th Cir. 1989).

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IT IS, THEREFORE, RECOMMENDED that plaintiff's claims be dismissed, pursuant to 28 U.S.C. § 1915A, for failure to state a claim for which relief can be granted. It is further RECOMMENDED that plaintiff's request for a temporary restraining order be denied. [1] Under 28 U.S.C. § 636(b)(l), the parties may make specific written exceptions to this r ecommendation within twenty days. The District Judge will consider only exceptions to the specific proposed findings and recommendations of this report. Exceptions should not include matters outside of the report and recommendation. Other matters should be addressed in a separ ate pleading for consideration by the Magistrate Judge. The statute provides for exceptions to be filed within ten days of the service of the r epor t and recommendation. The court has extended that time to twenty days, and thus, additional time to file exceptions will not be granted unless there are exceptional cir cumstances. Failure to make specific written exceptions to this report and recommendation will result in a waiver of the right to appeal. See L.R. 74.1(a)(2). As previously stated, the court has granted plaintiff leave to proceed in forma pauperis on a provisional basis. By doing so, the court has foregone collection of the $350.00 filing fee established for civil cases. Plaintiff is now warned that the court will attempt collection of the entir e $350.00 filing fee if plaintiff files another pleading of any type whatsoever in this case. See 28 U.S.C. § 1915(b)(2) (provisions for deducting money from prisoner's account). Under section 1915(b), installment payments are permitted after the assessment and payment of an initial partial filing fee. Dated this 28th day of October, 2008, at Jefferson City, Missouri.

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William A. Knox

WILLIAM A. KNOX United States Magistrate Judge

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