United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of Lamon Taneal
Hemingway (registration no.1101853), an inmate at Southeast
Correctional Center, for leave to commence this action
without payment of the required filing fee [Doc. # 2] and for
leave to file an amended complaint [Doc. #6]. 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 $1.70. See
28 U.S.C. § 1915(b)(1). Furthermore, upon review of the
complaint and first amended complaint, the Court will grant
Plaintiff's motion for leave to amend the complaint and
order the Clerk to issue process or cause process to be
issued on the amended complaint.
U.S.C. § 1915(b)(1)
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.
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 $8.50. Accordingly, the Court will assess an initial
partial filing fee of $1.70, which is 20 percent of
plaintiff's average monthly deposit.
U.S.C. § 1915(e)
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 Alacks
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 Aenough facts to state a claim to relief that
is plausible on its face.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
an inmate at SECC, brings this action pursuant to 42 U.S.C.
§ 1983, alleging violations of his civil rights. In his
motion for leave to file a first amended complaint, Plaintiff
states that his original complaint contains claims that are
related to another action before the Court. In an effort to
avoid duplicity, Plaintiff seeks to amend his complaint to
the first plausible claim Plaintiff made in his complaint and
drop all parties except Defendant Timothy Holsten. However,
in his amended complaint, Plaintiff names as Defendants Marc
Berry, Correctional Officer (“SECC”) and Timothy
Holsten, Case Manager (“SECC”). Plaintiff sues
Defendants in their individual capacities.
states that after he received two conduct violations on
“previous days, ” his Case Manager, Timothy
Holsten “teamed him, ” or set up a hearing
related to his conduct violations. The hearing was set for
January 5, 2017. Plaintiff told Holsten that he had been on
suicide watch from December 3, 2016 and on property removal
during that time period and, as a result, he had not received
a copy of either of the conduct violations. Plaintiff alleges
that he asked Holsten to delay his hearing until he was able
to have “due process” for the violations, or he
was able to have copies of the violation reports. Plaintiff
claims that Holsten denied his requests.
further alleges that Holsten wrote a false statement on one
of the conduct violation reports, attributed to plaintiff.
Plaintiff believes Holsten wrote the false statement because
Plaintiff has been, and is continuing to, file complaints
against Defendant Holsten.
claims that Holsten charged him for damage to a mattress and
a sprinkler. He asserts that although he did damage the
sprinkler, he did not damage the mattress. He states that he
asked Holsten to review the documentary evidence relating to
how the mattress was already damaged when he entered the
cell, but Holsten refused to do so, in retaliation for
Plaintiff's prior complaints against him. Plaintiff has
not made any allegations against Defendant Marc Berry in the
amended complaint. Plaintiff seeks monetary damages and
reviewing the complaint in its entirety, as well as the
proposed amended complaint, the Court will order the Clerk to
issue process or cause process to issue on Plaintiff's
claims of retaliation and due process violations against
Timothy Holsten in his individual capacity. Plaintiff,
however, has not made a direct claim against Marc Berry. As a
result, Defendant Berry will be dismissed from this lawsuit.
Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir.
1990) (ALiability under § 1983 requires a causal link
to, and direct responsibility for, the alleged deprivation of
rights.@); see also Martin v. Sargent, 780 F.2d
1334, 1338 (8th Cir. ...