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Hemingway v. McSpadden

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

September 12, 2017

BRANDEN McSPADDEN, et al., Defendants.



         This 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. 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, after reviewing the amended complaint[1], the Court will partially dismiss the amended complaint and will order the Clerk to issue process or cause process to be issued on the non-frivolous portions of the amended 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 $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.

         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, an inmate at SECC, brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his civil rights. Named as defendants are: Branden McSpadden (Correctional Officer); Cory Sisk (Correctional Officer); Gregory Hancock (Captain); Brandi Merideth (Functional Unit Manager); Timothy Seabaugh (Case Manager); Paula Reed (Asst. Warden); Bill Stange (Deputy Warden); Jason Lewis (Warden); Jesse May; Mark Curran (Mental Health Counselor); Steve Johnson (Chaplin); Robert Bolin (Correctional Officer). Plaintiff claims that each of the defendants are employed by the Missouri Department of Corrections. Plaintiff sues defendants in their individual capacities.

         Plaintiff states that on March 8, 2017, he was being transported from his cell to a "cell being used as a nurse's station" in order to see defendant Mark Curran to report on a PRE A event relating to a staff member. PREA stands for Prison Elimination Act Complaint. Plaintiff complains that he was being escorted by defendant correctional officers McSpadden, Sisk and Bolin. Plaintiff states that as he started to sit on a bench to speak to defendant McSpadden, defendant McSpadden gave him a "wedgie" by pulling his boxers up from the back of his pants and pulling them between his buttocks. Plaintiff states that defendants McSpadden, Sisk and Bolin laughed at the event. Plaintiff demanded to make a PREA report against defendant McSpadden, but defendant Curran denied his request at that time, stating that he needed to go through proper channels to make the report. Plaintiff insisted that he be able to report a PREA violation against defendant McSpadden, but again he was rebuffed by defendant Curran and told by defendant Curran that he could not file a PREA complaint at that particular time but needed to first make the PREA report to a correctional officer at his duty station or to his FUM.[2]

         Plaintiff states that at the same time he was insisting that he be able to report defendant McSpadden for a PREA violation, defendants McSpadden, Bolin and Sisk were searching his cell. Plaintiff states that defendant McSpadden wrote a false conduct violation against plaintiff for "making, transferring or having in possession an unauthorized article or substance." Plaintiff states that defendant McSpadden falsely indicated that plaintiff had several unauthorized kosher food substances in his cell in retaliation for attempting to report him pursuant to PREA. Plaintiff claims that he was being housed in a suicide cell at that time, which was constantly under camera surveillance that would clearly show that defendant McSpadden lied and falsified the conduct report in retaliation for plaintiffs PREA complaint against him. Plaintiff states that in further retaliation, after writing up the conduct violation report, McSpadden requested that plaintiff be placed on meal loaf restriction, and knowing that the violation was false, defendant Hancock approved the request.

         Plaintiff states in a conclusory manner that he believes that defendants Merideth, May, Stange and other unnamed Wardens knew or should have known that plaintiff did not violate any prison rules; however, these individuals signed off on the meal loaf sanctions "at another time" even though plaintiff did not fit the criteria for meal loaf. Plaintiff does not specifically state how these defendants allegedly knew that McSpadden's complaints were allegedly false or when they allegedly "signed off on the purportedly false conduct violation and request to punish plaintiff by giving him meal loaf.

         Plaintiff states that he has a First Amendment right to practice his Messianic religious beliefs, which include eating kosher foods. Plaintiff asserts that he was on a certified religious meal plan at SECC. He states in a conclusory manner that he was taken off the kosher diet by defendants Steve Johnson, Bill Stange and Jason Lewis. However, he does not offer any dates or times indicating that his removal from his kosher diet for a purported second retaliation claim should be treated separately from the initial removal from the kosher diet/meal loaf diet initiated by defendant McSpadden. In fact, plaintiff states that he believes that this was done in retaliation, after plaintiff requested to file the PREA complaint against defendant McSpadden.[3]

         Plaintiff claims that the conduct violation reported by defendant McSpadden was heard by Case Manager Timothy Seabaugh. The decision was approved by defendant Brandi Merideth, Functional Unit Manager. The findings were appealed to Asst. Warden Paula Reed. Plaintiff states that he was ...

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