United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, District Judge.
This matter is before the Court upon the motion of Ernest Cornelius Williams (registration no. 43551), an inmate at Potosi Correctional Center, for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that the plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $2.62. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will partially dismiss the complaint and will order the Clerk to issue process or cause process to be issued on the non-frivolous portions of the complaint.
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), 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 six-month 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 plaintiff's account indicates an average monthly deposit of $13.08, and an average monthly balance of $0. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $2.62, which is 20 percent of plaintiff's average monthly deposit.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must 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 from a defendant who is immune from such relief. An action is frivolous if it "lacks an arguable basis in either law or fact." Neitzke v. Williams , 490 U.S. 319, 328 (1989); Denton v. Hernandez , 504 U.S. 25, 31 (1992). An action is malicious if it is undertaken for the purpose of harassing the named defendants 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). A complaint fails to state a claim if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007).
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." Id . 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 plaintiff's conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id . at 1950, 51-52.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 for alleged retaliation by prison officials at Potosi Correctional Center ("PCC"). Named as defendants are: Don Roper (Warden); Ian Wallace (Asst. Warden); Kay Kline (Functional Unit Manager); Brian Allen (Acting Functional Unit Manager); Eric Dunn (Caseworker); Christy Hoffman (Correctional Officer); Jeremy Huffman (Correctional Officer); Willie Forbes (Correctional Officer); Jason Horn (Correctional Officer); Daniel Blair (Correctional Officer); Kevin Culton (Correctional Officer); Shannon Clubbs (Correctional Officer); Clifton Copeland (Correctional Officer); Charles Conrad (Correctional Officer); Philip Comer (Correctional Officer); and Rick Bailey (Correctional Officer). Plaintiff names defendants in their individual and official capacities, and he seeks both monetary and injunctive relief.
A. First Amendment Retaliation Allegations
During June and early July 2009, plaintiff asserts that defendant Blair came to plaintiff's housing unit and directed several of defendant Blair's subordinates to "strip search plaintiff, take urine samples from plaintiff, search plaintiff's cell, read and scatter plaintiff's legal papers in plaintiff's cell, harass and belittle plaintiff." Plaintiff claims that defendant Blair ordered these actions because "plaintiff had filed grievances/lawsuit against defendant Blair and/or other PCC staff." He asserts that "before and after the foregoing months Blair repeated[ly] told plaintiff that he would get [him] for filing grievances against PCC prison staff."
Plaintiff alleges that defendant Horn removed him from general population on July 9, 2009, and placed in him administrative segregation under the pretext of "extortion charges." Plaintiff claims that defendant Horn told him that the real reason he was being placed in administrative segregation was because of filing grievances/lawsuits against PCC staff and "being put in the hole is just the beginning of the punishment they [had] in store for plaintiff."
On July 10, 2009, plaintiff alleges that defendants Copeland and Forbes denied him a noon meal to "punish plaintiff" and "issued him a false misconduct violation to bring disciplinary actions against him because he had filed grievances/lawsuit against other PCC officials." Plaintiff claims that defendants Clubbs, Culton, Conrad and Comer (referred to by plaintiff as the "C-Gang") "almost routinely denied plaintiff noon meal, put plaintiff on meal-loft [sic] to punish him, issued him false conduct violations alleging plaintiff violated a number of prison rules during his confinement in the hole, and initiated disciplinary action against plaintiff because plaintiff filed grievances/lawsuit regarding the conditions of his confinement at PCC." Plaintiff asserts in a conclusory manner that defendants Hoffman and Forbes "supervised" the "C-Gang" and condoned the behavior of the defendants in "C-Gang."
Plaintiff further asserts defendants Allen and Blair acted as administrative segregation committee members and conducted plaintiff's 30-day review hearing. Plaintiff claims that he was not given proper notice of the hearing, and he asserts, generally, that the hearing was conducted in violation of several Missouri Department of Corrections' ("MDOC") rules and regulations. Plaintiff claims he was told at the hearing that his confinement would be continued because defendant Horn was investigating him for "strong-arming, " rather than just "extortion." Plaintiff asserts in an entirely conclusory fashion that defendants Blair, Allen and Horn worked "in concert" to retaliate against him to continue his confinement in administrative segregation. He asserts, without any accompanying factual information whatsoever, that defendants Roper and Wallace "approved these acts" when they "reviewed plaintiff's confinement in the hole reports submitted to them by their subordinates." Plaintiff has failed to provide any documentation relating to the alleged review hearing or the purported "approval" by defendants Roper and Wallace.
Plaintiff claims that in August 2009, defendant Huffman issued plaintiff a false conduct violation, alleging he damaged a MDOC's bed sheet, as retaliation for having filed grievances/lawsuit. Plaintiff asserts that on September 22, 2009, defendant Conrad "took plaintiff's bed pillow and ripped it into pieces in front of plaintiff" and "repeatedly told plaintiff he hated him and wished he was dead because plaintiff filed a lawsuit ...