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Smotherman v. Missouri Dept. of Corr.

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

April 9, 2018

MISSOURI DEPT. OF CORR., et al., Defendants.



         Before the Court is plaintiffs motion to withdraw his appeal. The Court will grant plaintiffs motion. Additionally, as plaintiff has submitted his account statement, the Court will vacate its dismissal of this action and reopen the present matter for review of plaintiffs complaint pursuant to 28 U.S.C.§ 1915.

         Plaintiff is currently serving his Missouri sentence at the Boonville Treatment Center. The Court will interpret plaintiffs submission of his account statement as a request for leave to proceed in forma pauperis in this matter. 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 $38.11. 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 plaintiffs account indicates an average monthly deposit of $190.59. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $38.11, 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 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 is malicious when it is undertaken for the purpose of harassing litigants 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).

         To determine whether an action fails to state a claim upon which relief can be granted, the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950-51 (2009). These include "legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements." Id. at 1949. Second, the Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51. This is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. The plaintiff is required to plead facts that show more than the "mere possibility of misconduct." Id. The Court must review the factual allegations in the complaint "to determine if they plausibly suggest an entitlement to relief." Id. at 1951. When faced with alternative explanations for the alleged misconduct, the Court may exercise its judgment in determining whether plaintiffs proffered conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 1951-52.

         The Complaint

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Named as defendants are: the Missouri Department of Corrections ("MDOC"); David Hawanchak (Correctional Officer at Eastern Diagnostic and Corrections Center ("ERDCC"); Steven Bradley (Correctional Officer at ERDCC); John Doe and Jane Doe.

         Plaintiff asserts that during his incarceration at ERDCC in July of 2015, Correctional Officer Hawanchak wrote him up for two purportedly fraudulent conduct violations. Plaintiff states that Hawanchak claimed that during a cell search of plaintiffs cell he found a crumpled up piece of paper in the trash with the words, "Break a hoe cuz a hustle on da lou ant tryna go for broke so both can on a stroll if you don't ima cut you throat!" Hawanchak claimed he also found a "tag" on plaintiffs cell wall that stated, "Horse Shoe Posse Blood." Plaintiff was written up for an alleged threat, as a result of the words on the crumpled up paper, as well as destroying state property for the "tag" on the wall.

         Plaintiff asserts that he was given three-hundred (300) days in "the hole, " or in administrative segregation, for the conduct violations, as well as loss of "good time credit." He claims he was not afforded due process during the hearing on his conduct violation. Plaintiffs defense to the charges on his violations is that the words on the page were song lyrics from an approved list of music at the prison. He asserts that the words on the wall were there prior to him being assigned to the cell.

         Plaintiff claims that because he was in administrative segregation serving time on his conduct violations, he was taken to his parole hearing in "shackles and restraints." He also asserts that he was denied the ability to bring ...

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