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Sargent v. Long

United States District Court, E.D. Missouri, Southeastern Division

August 4, 2017

VINCENT E. SARGENT, Plaintiff
v.
STEVE LONG, et al., Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE, UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the motion of plaintiff (registration no. 149819), an inmate at Southeast Correctional Center ("SECC"), 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 $35.28. 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 plaintiffs account indicates an average monthly deposit of $176.43. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $35.28, which is 20 percent of plaintiffs 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).

         The Amended Complaint

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Named as defendants are: Steve Long (Dir. Of Adult Inst., MDOC); Dave Dormire (Dir. Of Adult Inst., MDOC); Doug Worsham (Sup. Of Religious and Spiritual Programming, MDOC); Robin Norris (Central Office Food Service Coordinator, MDOC); Thomas Shanefelter (Regional Food Service Coordinator, MDOC); Joseph Campbell (Food Service Manager, SECC); Dwayne Kemper (Deputy Div. Director of Adult Inst., MDOC); Bill Stange (Asst. Warden, SECC); Steve Johnson (Chaplain, SECC) and; Ms. B. Meredith (Functional Unit Manager, SECC). Plaintiff names defendants in their official and individual capacities.

         Plaintiff, a practicing Muslim, claims that defendants Shanefelter and Campbell violated his First Amendment rights to freely practice his religion and equal protection rights to be "free from discrimination" when they denied him the same meal as the rest of the general prison population during the religious month of Ramadan. Plaintiff believes that the sack lunch he was given for "fasting" during Ramadan was "tantamount to punishment" for practicing his religious beliefs, a "clear violation of RLUIPA. Plaintiff claims that those of Jewish faith are accommodated with Kosher meals, in addition to allowed to buy food on the Kosher canteen list. He believes that to accommodate fasting Muslims, ready to serve micro-wavable meals should be served from approved vendors. Plaintiff states, in a conclusory manner that Doug Worsham and Robin Norris instituted the rule of serving fasting Muslim inmates sack lunches under the guise of accommodation but this has only resulted in a form of punishment for practicing a sincerely held religious belief. Plaintiff has not produced any facts that have indicated that Worsham or Norris instituted the "sack lunch" rules.

         Plaintiff claims that Worsham and Steven Johnson, the Chaplain at SECC, violated his First Amendment rights to freely practice his religion and his equal protecting right to be "free from discrimination" and RLUIPA when they refused he and other Muslims the right to receive religious oil donations (or the right to purchase religious oil) from a valid Islamic vendor. Plaintiff states in a conclusory fashion that Steve Long and Dave Dormire issued the directive not to allow the purchasing of religious oils, but he has not included any statements relating to these two defendants or their issuance of such a directive.

         Last, plaintiff asserts that FUM Meredith, Acting Warden Stange and Dwayne Kemper upheld the enforcement of DOC policy I.S. 17-1.1, Sec. (L) § B. Plaintiff believes that the policy violates his right to equal protection and to be free from discrimination, presumably under RLUIPA and/or the First Amendment, by limiting the wearing of a "kufi" to religious practice only. Plaintiff states that the wearing of a "kufi" should not be limited to only during religious practice, or during prayer. Plaintiff states that he is challenging the constitutionality of this practice.

         Plaintiff seeks injunctive relief ...


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