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Phillips v. Freeman

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

November 9, 2017

BRANDON C. PHILLIPS Plaintiff,
v.
GARY FREEMAN, et al., Defendants.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon the motion of Brandon C. Phillips (registration no. 1117250), an inmate at Northeast 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 $12.42. 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 $62.08. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $12.42, which is 20 percent of plaintiff's average monthly deposits.

         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 fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).

         In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

         The Complaint

         Plaintiff brings this civil rights action against various officials at the Maryville Treatment Center (“MTC”), alleging violations of his constitutional rights arising out of his termination from the drug treatment program. MTC is a substance abuse treatment facility within the Missouri Department of Corrections (“MDOC”). It is considered a minimum security institution, and is a therapeutic alternative to incarceration in prison. MTC provides long and short term substance abuse treatment.[1]

         Had plaintiff successfully completed the drug treatment program at MTC, he would have been eligible for a release date of August 3, 2017. Plaintiff alleges the officials violated his constitutional rights by not affording him the due process right to confront an anonymous informant before finding him guilty of possessing the synthetic drug “K2.” In addition, he states he was not allowed to see any documentation regarding the investigation; no substance was ever recovered from him; he never tested positive for any substances; and the violation was issued with no physical, video, or corroborative evidence outside of the anonymous informant's statement.

         For relief, plaintiff seeks an award of $500.00 per day from October 13, 2016 to the present because the alleged violation of his rights cost plaintiff his treatment and release date.[2]

         Discussion

         To prevail on his § 1983 claim, plaintiff must first establish he was deprived of a protected liberty interest. The Eighth Circuit has held that there is no protected liberty interest in a sentence reduction that may be granted upon completing a drug treatment program in MDOC. See Persechini v. Callaway, 651 F.3d 802, 807 (8th Cir. 2011) (affirming denial of Missouri state prisoner's § 1983 action against prison officials for alleged deprivation of due process rights by terminating him from substance abuse program); see also Staszak v. Romine, 221 F.3d 1344 (8th Cir. 2000) (per curiam) (unpublished table decision) (finding plaintiff who failed drug abuse treatment program had no liberty interest in provisional release date and suffered no due process violations as a result of rescission). Citing the Supreme Court's decision in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979), the Eighth Circuit held that a Missouri inmate does not have a protected liberty interest in the discretionary probationary release to which he might be eligible if he successfully completes MDOC's drug treatment program. Persechini, 651 F.3d at 808; see also Adams v. Agniel, 405 F.3d 643, 645 (8th Cir. 2005) (“[A]n inmate does not have a ...


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