United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of plaintiffs
Stanley Johnson and Flennord Smith, inmates at Southeast
Correctional Center (“SECC”), for leave to
commence this action without payment of the required filing
fee. For the reasons stated below, the Court finds that
plaintiffs do not have sufficient funds to pay the entire
filing fee and will assess an initial partial filing fee of
$1.00 per plaintiff. 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.
plaintiffs have submitted a joint motion to proceed in forma
pauperis, although neither plaintiff has submitted a prison
account statement. Typically, this Court will not accept a
joint motion to proceed in forma pauperis. However, in this
instance, it appears neither plaintiff has sufficient funds
to pay the full filing fee. Thus, the Court will require each
plaintiff to pay an initial partial filing fee of $1.00.
See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir.
1997) (when a prisoner is unable to provide the Court with a
certified copy of his prison account statement, the Court
should assess an amount “that is reasonable, based on
whatever information the court has about the prisoner's
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 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).
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, 556 U.S. 662, 678-80
(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 678. Second, the Court
must determine whether the complaint states a plausible claim
for relief. Id. at 679. This is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. 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 680. When faced with alternative explanations
for the alleged misconduct, the Court may exercise its
judgment in determining whether plaintiff's proffered
conclusion is the most plausible or whether it is more likely
that no misconduct occurred. Id. at 680-2.
inmates at SECC, bring this action pursuant to 42 U.S.C.
§ 1983 alleging violations of their civil rights. They
seek compensatory and punitive damages for what they believe
to be a violation of federal and constitutional law.
Plaintiffs have named the following individuals as defendants
in this action: Jayson Lewis, Paula Reed, Dave Mincker, and
state that the Missouri Department of Corrections has stopped
selling tobacco products “prior to the federal law
deadline of March 2018.” Plaintiffs believe that
enforcing the new policy before the deadline and
“ignoring the federal law” is “causing
havoc” and “punishing inmates.” The Court
believes plaintiffs are referring to the Missouri Department
of Corrections plans to implement a policy to go
“smoke-free” no later than April 1, 2018. See
https://doc.mo.gov/tobacco.php. The policy arose in
part, to a stipulated agreement entered into on September 21,
2017, in a lawsuit between the Missouri Department of
Corrections and an inmate, Washington v. Denney,
the Court has some empathy for plaintiffs regarding the
difficulty with smoking cessation, it is well established
that there is no federal constitutional liberty interest in
having state officers follow state law or having prison
officials follow prison regulations. Phillips v.
Norris, 320 F.3d 844, 847 (8th Cir. 2003) (citing
Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir.
1996)); see also Gardner v. Howard, 109 F.3d 427,
430 (8th Cir. 1997) (failure to follow prison policy is not
basis for § 1983 liability). Thus, plaintiffs have no
federal cause of action against defendants for starting the
new “smoke-free” policy early at SECC. As such,
their complaint is subject to dismissal.
IT IS HEREBY ORDERED that plaintiffs'
motion to proceed in forma pauperis is
GRANTED. [Doc. 2]
IS FURTHER ORDERED that plaintiff Stanley Johnson
shall pay an initial filing fee of $1.00 within thirty (30)
days of the date of this Order. Plaintiff is instructed to
make his remittance payable to “Clerk, United States
District Court, ” and to include upon it: (1) his name;
(2) his prison ...