United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RONNIE
L. WHITE UNITED STATES DISTRICT JUDGE
This
matter is before the Court on the motion of plaintiff Robin
Anthony Thomas for leave to commence this civil action
without prepayment of the required filing fee. Having
reviewed the motion and the financial information submitted
in support, the Court has determined to grant the motion, and
assess an initial partial filing fee of $9.11. See
28 U.S.C. § 1915(b)(1). In addition, for the reasons
discussed below, the Court will dismiss the complaint without
prejudice.
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 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 $10.00, until the
filing fee is fully paid. Id.
In
support of the instant motion, plaintiff submitted an inmate
account statement showing an average monthly balance of
$45.57. The Court will therefore assess an initial partial
filing fee of $9.11, which is twenty percent of plaintiff s
average monthly balance.
Background
The
instant complaint is the second civil rights complaint
plaintiff has filed in this Court this year. On March 1,
2017, plaintiff filed a complaint seeking relief pursuant to
42 U.S.C. § 1983 against the St. Louis County Justice
Center, Judy Lang, Christine Hattler, Gene Fitzgerald, and
Jane Doe. See Thomas v. St. Louis County Justice
Center, Case No. 4:17-cv-815-NAB (E.D. Mo. Apr. 21,
2017) (hereafter "Thomas F). Plaintiff sought
and was granted leave to proceed in forma pauperis. In the
complaint, plaintiff alleged that he was incarcerated at the
St. Louis County Justice Center from November 13, 2012
through September 10, 2014; his bank card was stored among
his personal property in the property room; he designated one
Michael Roberts as the person authorized to receive the bank
card following his transfer to the Missouri Department of
Corrections; Jane Doe intentionally and negligently released
the bank card to one Lionel Hardy; and Hardy fraudulently
used the card. He also alleged that Christine Hattler helped
him fill out a property release form, and wrote down the 16
digits from his bank card for him at his request. Plaintiff
also alleged that Fitzgerald, Lang and Hardy responded
inappropriately when plaintiff tried to investigate the
matter.
On
April 21, 2017, the Court dismissed the case pursuant to 28
U.S.C. § 1915(e)(2)(B) after determining that the
complaint was frivolous and/or failed to state a claim upon
which relief could be granted. Plaintiff filed a notice of
appeal in the United States Court of Appeals for the Eighth
Circuit, but on October 30, 2017, the Court dismissed the
appeal due to plaintiffs failure to prosecute.
The
Complaint
In the
case at bar, plaintiff again seeks relief pursuant to 42
U.S.C. § 1983. He names Judy Lang, Herbert Bernsen, Tina
Hayler, Gene Fitzgerald, Jane Doe and Lionel Hardy as
defendants. The complaint sets forth nearly identical
allegations as in Thomas I.
As in
Thomas I, plaintiff states he was incarcerated at
the St. Louis County Justice Center from November 13, 2012
through September 10, 2014, and that his bank card was held
among his personal property. He states that Hayler wrote the
16 digits from the card on a piece of paper for him so that
he could buy telephone time. He states he was scheduled to be
transferred to the custody of the Missouri Department of
Corrections, and he designated one Michael Roberts as the
person authorized to receive the bank card following his
transfer. He states that Hayler helped him complete a
property release form. He alleges that Lang, Doe, Hayler,
and/or Bernsen negligently or intentionally released his bank
card and some other property to Hardy, and that Hardy
fraudulently used the bank card. Finally, he alleges that
Bernsen and Fitzgerald failed to help him investigate and/or
ignored his requests for forms.
Discussion
The
instant complaint is based upon the same facts as the
complaint in Thomas I, which this Court dismissed
pursuant to 28 U.S.C. § 1915(e). While the dismissal of
Thomas I "does not bar future litigation over
the merits of a paid complaint making the same allegations as
the dismissed complaint, " a § 1915(e) dismissal
has res judicata effect and establishes that a subsequent
claim based upon the same facts is frivolous for purposes of
§ 1915(e). Waller v. Groose, 38 F.3d 1007, 1008
(8th Cir. 1994) (per curiam) (citing Denton v.
Hernandez, 504 U.S. 25 (1992)); see also Cooper v.
Delo, 997 F.2d 376, 377 (8th Cir. 1993) (§ 1915(e)
dismissal has res judicata effect on future IFP petitions).
Accordingly, this Court determines the § 1915(e)
dismissal of Thomas I has res judicata effect and
establishes that this second complaint, based upon the same
facts, is frivolous for § 1915(e) purposes. The Court
will therefore dismiss the complaint.
In
addition, as this Court determined in Thomas I,
plaintiffs claim that his bank card was intentionally
released to Hardy does not establish a Due Process violation.
The state of Missouri provides an adequate post-deprivation
remedy, and plaintiff does not allege that those remedies
were inadequate. See Hudson v. Palmer,468 U.S. 517,
531-21 (1984) (If the deprivation of property by prison
officials is intentional and the state provides an adequate
post-deprivation remedy, there is no Due Process violation).
Plaintiffs claim that his bank card was negligently released
to Hardy simply fails to implicate the Due Process Clause.
See Daniels v. Williams,474 U.S. 327, 328 (1986)
(the "Due Process Clause is simply not implicated by a
negligent act of an official causing unintended loss
of or injury to life, liberty, or property") (emphasis
in original). Plaintiffs allegations against Lionel Hardy do
not state a claim under 42 U.S.C. § 1983 because
plaintiff does not allege, nor is it apparent, that Hardy was
acting under color of state law. See West v. Atkins,487 U.S. 42, 48 (1988) (to state a claim under 42 U.S.C.
ยง 1983, a plaintiff must establish: (1) the violation of
a right secured by the Constitution or laws of the United
States, and (2) that the alleged deprivation of that right
was committed by a person acting under color of state law).
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