United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
a prisoner, seeks leave to proceed in forma pauperis in this
civil action under 42 U.S.C. § 1983. Having reviewed
plaintiff's financial information, the Court assesses a
partial initial filing fee of $11.00, which is twenty percent
of his average monthly deposit. See 28 U.S.C. §
1915(b). Also, for the reasons discussed below, this action
will be dismissed under 28 U.S.C. § 1915(e).
28 U.S.C. § 1915(e), the Court is required to dismiss a
complaint filed in forma pauperis if it is frivolous,
malicious, or fails to state a claim upon which relief can be
granted. To state a claim for relief, a complaint must plead
more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of
action [that are] supported by mere conclusory
statements.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A plaintiff must demonstrate a plausible claim
for relief, which is more than a “mere possibility of
misconduct.” Id. at 679. “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. at 678. Determining whether a complaint states a
plausible claim for relief is a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense. Id. at 679.
reviewing a complaint under 28 U.S.C. § 1915(e), the
Court accepts the well-pled facts as true. Furthermore, the
Court liberally construes the allegations.
brings this action against several officials with the
Missouri Department of Corrections. Plaintiff was convicted
of sex offenses and is serving a term of imprisonment. To be
eligible for conditional release, Missouri inmates convicted
of sex offenses must complete the Missouri Sexual Offender
Program (MOSOP). There are two phases to the program, and
inmates must complete both phases.
completed Phase I of the program and started Phase II. While
he was participating in Phase II, he was given a conduct
violation for forcible sexual misconduct. Plaintiff admitted
to the correctional officer that he engaged in
“horseplay” and “buttock grabbing”
with another inmate. On June 5, 2014, a classification
hearing was held, and the hearing officer found plaintiff
guilty. She ordered that he serve thirty days in disciplinary
segregation. Plaintiff believes he should have been found
guilty of a lesser violation.
named defendants refused plaintiff's “second
chance” application to MOSOP because of the violation.
Plaintiff says that his due process rights were violated
because he was not allowed to present evidence during the
classification hearing. He also claims his right to equal
protection was violated because other inmates were allowed
second chances at MOSOP.
inability to participate in MOSOP has adversely affected his
conditional release date.
inmates do not have a liberty interest in parole or
participation in MOSOP. See Jones v. Moore, 996 F.2d
943, 945 (8th Cir. 1993). Therefore, defendants did not
violate plaintiff's right to due process by denying him
reentry to MOSOP.
for the due process clause to be implicated, an inmate
subjected to segregation must have been subjected to
“atypical and significant hardship . . . in relation to
the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472 (1995). Plaintiff's allegations
do not indicate that he has suffered the type of atypical and
significant hardship which might conceivably create a liberty
interest. Id. at 485-86 (no atypical and significant
hardship where inmate spent thirty days in solitary
confinement); Hemphill v. Delo, 124 F.3d 208 (8th
Cir. 1997) (unpublished) (same; four days locked in housing
unit, thirty days in disciplinary segregation, and
approximately 290 days in administrative segregation).
Plaintiff's allegation that he was denied due process
during the classification hearing fails to state a claim for
a plaintiff must “allege and prove something more than
different treatment by government officials” to state
an equal protection claim. Batra v. Bd. of Regents of
Univ. of Nebraska, 79 F.3d 717, 721 (8th Cir. 1996).
“[T]he key requirement is that plaintiff allege and
prove unlawful, purposeful discrimination.”
Id. at 722; see Albright v. Oliver, 975
F.2d 343, 348 (7th Cir.1992) (“you must be singled out
because of your membership in the class, and not just be the
random victim of governmental incompetence”),
aff'd on other grounds, 510 U.S. 266 (1994);
Booher v. United States Postal Serv., 843 F.2d 943,
944 (6th Cir.1988) (“[t]he equal protection concept
does not duplicate common law tort liability by conflating
all persons not injured into a preferred class”);
Joyce v. Mavromatis, 783 F.2d 56, 57 (6th Cir.1986)
(“[t]he equal protection argument fails here because
the wrong is not alleged to be directed ...