United States District Court, E.D. Missouri, Southeastern Division
December 29, 2014
WILSON JONES, Plaintiff,
MISSOURI DEPARTMENT OF CORRECTIONS, et al., Defendants.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This matter is before the Court upon the motion of Wilson Jones, an inmate at Southeastern Correctional Center, for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $1.50. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that the complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
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 $7.50, and an average monthly balance of less than $7.50. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $1.50, 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 may 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 against a defendant who is immune from such relief. An action is frivolous if "it lacks an arguable basis in either law or in fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious when it is undertaken for the purpose of harassing litigants 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).
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 proffered conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.
Plaintiff brings this action under 42 U.S.C. § 1983 against George Lombardi (Director, Missouri Department of Corrections), Ian Wallace (Warden, Southeast Correctional Center ("SECC")), Paula Phillips (Assistant Warden), Regina Beggs (Functional Unit Manager), Rickie Rainey (Caseworker), Michael Vinson (Caseworker) Travis Wilhyte (Caseworker), and Joyce Dickerson (Caseworker).
Plaintiff alleges that he was assaulted by a gang member in 2013, and as a result, he was placed in protective custody. In July 2014, defendants Regina Beggs and Rickie Rainie told plaintiff to sign enemy waivers and to bunk with a man plaintiff says was a homosexual. Plaintiff says he refused to sign the waivers because the names on the waivers were still his enemies. And he says he refused to bunk with the homosexual because he is Muslim and it interferes with his religion. As a result, Beggs and Rainie placed him in the general population on July 16, 2014, despite his claim that persons in the general population had threatened to kill him.
Plaintiff does not allege that he has been assaulted at any time since he has been placed in the general population.
Plaintiff alleges that the other defendants must have known about Beggs and Rainie's actions and that they condoned them.
Plaintiff also claims that his due process rights were violated because he was placed in administrative segregation for two months without a hearing.
To state a failure to-protect claim, plaintiff must show that (1) defendants were aware of facts from which they could infer the existence of a substantial risk of serious harm to him, (2) they actually drew the inference, and (3) they failed to take reasonable steps to protect him. See Farmer v. Brennan, 511 U.S. 825, 836-38, 844 (1994). In this instance, plaintiff has not alleged that he has been exposed to the inmates who wish to harm him since he has been back in the general population. Therefore, he has not alleged that defendants were aware of the existence of a substantial risk of serious harm to plaintiff and that they failed to take reasonable steps to protect him. Plaintiff's fail-to-protect claim fails to state a claim upon which relief can be granted.
To state a claim under § 1983 for unconstitutional placement in administrative segregation, a prisoner "must show some difference between his new conditions in segregation and the conditions in the general population which amounts to an atypical and significant hardship." Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003). Plaintiff has made no such allegations. E.g., Hemphill v. Delo, 124 F.3d 208 (8th Cir. 1997) (unpublished) (four days locked in housing unit, thirty days in disciplinary segregation, and approximately 290 days in administrative segregation not atypical or significant). As a result, plaintiff's due process claim fails as well.
Plaintiff's First Amendment religious claim fails as well. Even if plaintiff has a right not to be placed in a cell with a homosexual, he refused the placement. He does not allege that he spent any time in the same cell with the man he claims was a homosexual.
"Liability under § 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of rights." Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); see Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009) ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."). In the instant action, plaintiff has not set forth any facts indicating that defendants George Lombardi, Ian Wallace, Paula Phillips, Michael Vinson, Travis Wilhyte, or Joyce Dickerson were directly involved in or personally responsible for his transfer to the general population. Plaintiff only alleges that these defendants must have known about it and condoned it. This is not enough. As a result, the complaint fails to state a claim upon which relief can be granted, and the Court will dismiss this action under 28 U.S.C. § 1915(e).
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 5] is GRANTED.
IT IS FURTHER ORDERED that plaintiff's second motion to proceed in forma pauperis [ECF No. 8] is MOOT.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.50 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) that the remittance is for an original proceeding.
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B).
An Order of Dismissal will accompany this Memorandum and Order.