United States District Court, E.D. Missouri, Northern Division
BRANDON C. PHILLIPS Plaintiff,
GARY FREEMAN, et al., Defendants.
MEMORANDUM AND ORDER
W. SIPPEL, UNITED STATES DISTRICT JUDGE.
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).
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 $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.
U.S.C. § 1915(e)
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
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).
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
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
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
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 ...