Owen v. Young et al

Filing 10

Memorandum Opinion and ORDER adopting in part and denying in part 8 Report and Recommendation; granting 2 Motion for Leave to Proceed in forma pauperis; granting Motion to Amend; and Directing Service of Amended Complaint. Signed by U.S. District Judge Karen E. Schreier on 11/5/2015. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
LANCE G. OWEN,

4:15-CV-04087-KES
Plaintiff,

vs.
DARIN YOUNG, TROY PONTO, JAN
WAGNER, ALLCOCK (AW at SDSP),

MEMORANDUM OPINION AND
ORDER ADOPTING IN PART THE
REPORT AND RECOMMENDATION,
GRANTING MOTION TO AMEND,
AND DIRECTING SERVICE
OF COMPLAINT

Respondents.
Plaintiff, Lance G. Owen, filed this pro se lawsuit pursuant to 42 U.S.C.
§ 1983, naming Darin Young, Troy Ponto, Jan Wagner, and “Allcock (AW at
SDSP)” as defendants. Docket 1. This matter was referred to Magistrate Judge
Veronica L. Duffy for handling pretrial matters pursuant to 28 U.S.C.
§ 636(b)(1) and this court’s standing order of October 16, 2014. This case was
“screened” pursuant to 28 U.S.C. §§ 1915 and 1915A, and Magistrate Judge
Duffy recommends dismissal of Owen’s claims for failure to state a claim upon
which relief may be granted pursuant to §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Docket 8. Owen filed a “supplement,” which the court construes as a motion to
amend his complaint. Docket 9. For the reasons stated below, the report and
recommendation is adopted in part, Owen’s motion to amend is granted, and
his amended complaint survives screening.

FACTUAL BACKGROUND
Owen’s complaint, filed March 19, 2015, is the second he has filed
regarding the same subject matter. On August 20, 2013, this court dismissed
Owen’s first complaint without prejudice for failure to state a claim upon which
relief could be granted. See Civ. No. 13-4079, Docket 6. Rather than pursue an
appeal, Owen filed a subsequent § 1983 lawsuit. The docket for this lawsuit is
unclear because it was originally filed as an amended complaint in his first
lawsuit. Owen moved to proceed in forma pauperis. Docket 2. Before the court
ruled on that motion, Owen filed a partial filing fee. Docket 6. In the report and
recommendation, Magistrate Judge Duffy recommends granting Owen’s motion
to proceed in forma pauperis. Docket 8.
In his complaint, Owen alleged one cause of action but made multiple
claims within that cause of action. Docket 1. He alleged defendants denied him
equal protection because, although he is a “lifer” at the SDSP, he was not given
permission to transfer funds from his “frozen” prison account to (1) his other
prison sub-accounts; or (2) outside the prison to his relatives. Id. Owen also
implied defendants violated federal law by refusing to release the frozen funds
or allow him to use the funds as he wishes. Magistrate Judge Duffy
recommends that his complaint be dismissed for failure to state a claim upon
which relief may be granted. Docket 8.
Owen filed a “Supplement.” Docket 9. In this supplement, Owen argues
that defendants violated his rights by increasing his PLRA debt. Docket 9.
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Owen attaches account statements for April and May of 2015. Docket 9-1;
Docket 9-2. The April account statement states that Owen owes $144 to the
court under his PLRA obligation and that he has paid $206 toward this
obligation. Docket 9-1. Added together, these figures total $350, the amount of
a filing fee for an in forma pauperis filer. His May statement shows that Owen
now owes $248.22 and has paid $218 towards his PLRA obligation. Docket 9-2.
Added together, these figures total $466.22; it is unclear how this amount was
calculated.
LEGAL STANDARD
The court must assume as true all facts well pleaded in the complaint.
Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). It
has long been recognized that “civil rights pleadings should be construed
liberally.” Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995). The
complaint, however, must at the very least contain facts that state a claim as a
matter of law and must not be conclusory. Id. Broad and conclusory
statements unsupported by factual allegations are not sufficient. Ellingburg v.
King, 490 F.2d 1270 (8th Cir. 1974).
DISCUSSION
Liberally construed, Owen’s supplement constitutes a motion to amend
his complaint. In this complaint, he claims defendants violated his due process
rights by deducting too much money for filing fees without authority or proper
notification. The report and recommendation recommends that Owen’s claim
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be dismissed. Because Owen has amended his complaint, his original claims
have been superseded by the claims in his amended complaint. Thus, Judge
Duffy’s recommendations are moot and therefore not adopted.
I.

Owen’s Supplement Constitutes a Motion To Amend His
Complaint

Owen filed his “supplement” after Magistrate Judge Duffy made her
report and recommendation. In his supplement, Owen states a new claim. So,
the court will construe it as a motion to amend his complaint. See Kaden v.
Slykhuis, 651 F.3d 966, 968 (8th Cir. 2011) (on review of § 1915A dismissal,
the court construes prisoner’s objections to magistrate judge’s report as
motion for leave to amend complaint); Iheme v. Smith, 529 F. App’x 808,
809-10 (8th Cir. 2013) (objections which alleged other constitutional violations
should have been treated as a motion for leave to amend the complaint). A
motion for leave to amend is committed to the sound discretion of the district
court. Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998). The court
grants Owen’s motion to amend his complaint.
II.

Owen’s States a Due Process Claim

In his supplement, Owen claims that defendants added to his PLRA debt
without explanation. Construed liberally, Owen’s supplement raises
substantive and procedural due process claims. “The two claims are
analytically distinct.” Parrish v. Mallinger, 133 F.3d 612, 614 (8th Cir. 1998).
Owen argues that defendants unconstitutionally adjusted his PLRA debt and
did so without proper notification.
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A prisoner’s right to due process may be violated if the prisoner is
permanently deprived of money when defendants have no underlying statutory
authority to do so. Parrish v. Mallinger, 133 F.3d 612, 614 (8th Cir. 1998)
(quoting Sell v. Parratt, 548 F.2d 753, 759 (8th Cir. 1977)). Under the PLRA, “In
no event shall the filing fee collected exceed the amount of fees permitted by
statute for the commencement of a civil action or an appeal of a civil action or
criminal judgment.” 28 U.S.C. § 1915(b)(3). Owen alleges defendants are
attempting to make him pay more than the $350 filing fee without statutory
authority to do so. This states a due process claim.
Prisoners “ ‘have a protected interest in their money.’ ” Murray v. Dosal,
150 F.3d 814, 818-19 (8th Cir. 1998) (quoting Hampton v. Hobbs, 106 F.3d
1281, 1287 (6th Cir. 1997)). To determine the process due when money is
deducted from a prisoner's account:
Mathews requires [the court] to consider three factors: (1) the
private interest that will be affected by the official action; (2) the
risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and (3) the government's
interest.
Id. at 819 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
Owen alleges that defendants raised his PLRA debt for no reason and
without due process. His account statements show a rise in the PLRA debt
without explanation. Docket 9-1; Docket 9-2. The full discussion balancing the
interests outlined in Murray and Mathews is inappropriate at this time. Owen

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has sufficiently stated a claim upon which relief can be granted to survive
dismissal under § 1915A.
III.

Owen’s Filing Fee.

Both the legislative history and the case law interpreting the Prison
Litigation Reform Act (PLRA) instruct that unsuccessful prison litigants, like
any other litigants, do not receive their filing fees back if their cases are
dismissed. Even if his surviving claims are unsuccessful, Owen remains
responsible for the balance of the $350.00 filing fee.
Therefore, it is ORDERED
1. Magistrate Judge Duffy’s recommendation (Docket 8) that Owen’s
motion to proceed in forma pauperis be granted is adopted. Owen is
granted in forma pauperis status.
2. Owen’s supplement (Docket 9), construed as an amended complaint,
survives screening under § 1915A.
3. The recommendation that the claims in Owen’s complaint be
dismissed is moot and therefore not adopted.
4. The United States Marshal shall serve a copy of the amended
complaint (Docket 9), Summons, and this Order upon defendants as
directed by plaintiff. All costs of service shall be advanced by the
United States.
5. Defendants will serve and file an answer or responsive pleading to the
complaint on or before 21 days following the date of service.
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6. Owen will serve upon defendants, or, if appearance has been entered
by counsel, upon their counsel, a copy of every further pleading or
other document submitted for consideration by the court. He will
include with the original paper to be filed with the clerk of court a
certificate stating the date and that a true and correct copy of any
document was mailed to defendants or their counsel.
Dated November 5, 2015.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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