Moran et al v. Dooley et al

Filing 8

ORDER Dismissing Case and granting leave to proceed IFP. Signed by Chief Judge Karen E. Schreier on 10/20/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MARTIN JAMES VAN ANTWERP,
and JEFFERY J. MORAN,
Plaintiffs,
vs.
ROBERT DOOLEY,
Defendant.

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Civ. 11-4141-KES

ORDER GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING CASE

Plaintiffs, Martin James Van Antwerp and Jeffery J. Moran, move to
proceed in forma pauperis in their pro se civil rights lawsuit against
defendant. Van Antwerp and Moran ask that the court order Mike Durfee
State Prison to implement a mail log system, deliver mail to inmates on the
day it comes into the prison, and order the mailroom to “become more careful
with [their] mail.” Docket 1 at 4-5. Van Antwerp asserts that on one occasion,
a religious newsletter he receives was cut when prison staff used a letter
opener to cut open the newsletter. Id. at 5. Parts of the newsletter were
missing. Id. Van Antwerp asserts that on another occasion he wrote to a pen
pal service, but that the three first-class stamps he included in the letter were
missing when the service received it. Moran alleges that he received a letter
containing news of a family member’s death three days late. Id. at 4.
According to Moran, he should have received the letter in question on a
Saturday because the mail generally takes about three days to get to his

mother, but he did not receive it until the following Tuesday. Id. Neither Van
Antwerp nor Moran specify how these incidents or Mike Durfee State Prison’s
current mail handling policy violate their constitutional rights.
The Prison Litigation Reform Act (PLRA), 28 U.S.C. 1915, requires
prisoners to make an initial partial filing payment where possible, even if in
forma pauperis status is sought. “When an inmate seeks in forma pauperis
status, the only issue is whether the inmate pays the entire fee at the
initiation of the proceedings or over a period of time under an installment
plan.” Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (internal
citations omitted). Determination of the partial filing fee is calculated
according to 28 U.S.C. § 1915(b)(1), which requires a payment of 20 percent
of the greater of:
(A)
(B)

the average monthly deposits to the prisoner’s account; or
the average monthly balance in the prisoner’s account for
the 6-month period immediately preceding the filing of the
complaint or notice of appeal.

Van Antwerp has indicated that the average monthly deposits to his account
equal $5, and that his average monthly balance is a negative $2.78. Thus,
Van Antwerp must make an initial payment of $1, which is equal to 20
percent of $5. Moran has indicated that the average monthly deposits to his
account equal $22.33 and that his average monthly balance is $15.99. Thus,
Moran must make an initial partial payment of $4.47, which is equal to 20

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percent of $22.33. Accordingly, Van Antwerp’s and Moran’s respective
motions to proceed in forma pauperis are granted.
But the inquiry does not end there. The PLRA also requires this court to
“screen” Van Antwerp and Moran’s complaint to determine whether it should
be dismissed. Section 1915 provides an action must be dismissed if the court
determines the claim “(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.”
In assessing whether a plaintiff has failed to state a claim upon which
relief may be granted, the court must assume as true all facts well pleaded in
the complaint. Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37
(8th Cir. 1995). Also, “although liberally construed, a pro se complaint must
contain specific facts supporting its conclusions.” Allen v. Purkett, 5 F.3d
1151, 1153 (8th Cir. 1993) (citations omitted). A plaintiff’s complaint “does
not need detailed factual allegations . . . [but] requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). If it does
not contain these bare essentials, dismissal is appropriate. Beavers v.
Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Twombly requires that a
complaint’s factual allegations must be “enough to raise a right to relief above
the speculative level on the assumption that all the allegations in the
complaint are true.” Id. at 1965; Abdullah v. Minnesota, No. 06-4142, 2008
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WL 283693 (8th Cir. Feb. 4, 2008) (citing Twombly and noting complaint must
contain either direct or inferential allegations regarding all material elements
necessary to sustain recovery under some viable legal theory). The court is
not required to supply additional facts for a pro se plaintiff, nor construct a
legal theory that assumes facts which have not been pleaded. Stone v. Harry,
364 F.3d 912, 914 (8th Cir. 2004).
Van Antwerp and Moran’s complaint fails to state a claim upon which
relief may be granted. To state a claim for relief under § 1983, a plaintiff must
allege sufficient facts to show “(1) that the defendant(s) acted under color of
state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right." Zutz v. Nelson, 601 F.3d 842, 848
(8th Cir. 2010) (internal citations omitted). Even applying the liberal
construction necessary accorded to pro se complaints, Van Antwerp and
Moran have failed to allege that either the actions or policies of defendant
have violated their constitutional rights. Thus, their claim is subject to
dismissal under § 1915 for failure to state a claim upon which relief may be
granted.
Despite the dismissal of their case pursuant to the screening
procedures of § 1915, Van Antwerp and Moran are still obligated to pay the
filing fee. In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir.
1997). The obligation to pay a filing fee accrues the moment a plaintiff files
his complaint with the court, and it cannot be avoided merely because the
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case is eventually dismissed. In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997)
(prisoner will be assessed full filing fee even if his case is dismissed because
“the PLRA makes prisoners responsible for their filing fees the moment the
prisoner brings a civil action or files an appeal.”). Accordingly, it is
ORDERED that Van Antwerp’s and Moran’s respective motions to
proceed in forma pauperis (Docket 3, 5) are granted. Van Antwerp must
make an initial payment of $1 and Moran must make an initial partial
payment of $4.47 before November 21, 2011, made payable to the Clerk,
U.S. District Court. The institution having custody of plaintiffs is directed
that whenever the amount in plaintiffs’ trust accounts exceeds $10, monthly
payments that equal 20 percent of the funds credited the preceding month to
plaintiff's trust account will be forwarded to the U.S. District Court Clerk's
Office pursuant to 28 U.S.C. § 1915(b)(2), until the filing fee is paid in full.
Plaintiffs are advised the fee for filing this civil action is $350, and they
remain fully responsible for the fee.
IT IS FURTHER ORDERED that Van Antwerp and Moran’s complaint is
dismissed pursuant to 28 U.S.C. § 1915.
Dated October 20, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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