United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.
a prisoner, seeks leave to proceed in forma pauperis in this
civil action under 42 U.S.C. § 1983. Having reviewed
plaintiff's financial information, the Court assesses a
partial initial filing fee of $4.98, which is twenty percent
of his average monthly deposit. See 28 U.S.C. §
1915(b). 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(e), the Court is required to dismiss a
complaint filed in forma pauperis if it is frivolous,
malicious, or fails to state a claim upon which relief can be
granted. To state a claim for relief, a complaint must plead
more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of
action [that are] supported by mere conclusory
statements.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A plaintiff must demonstrate a plausible claim
for relief, which is more than a “mere possibility of
misconduct.” Id. at 679. “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. at 678. Determining whether a complaint states a
plausible claim for relief is a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense. Id. at 679.
reviewing a complaint under 28 U.S.C. § 1915(e), the
Court accepts the well-pled facts as true. Furthermore, the
Court liberally construes the allegations.
Berry Perry, currently an inmate at South Central
Correctional Center, brings this action pursuant to 42 U.S.C.
§ 1983 alleging due process, equal protection, First
Amendment, Fourth Amendment, and Eighth Amendment violations
arising from an order of disciplinary segregation and
administrative segregation after Perry was found guilty of a
conduct violation at Eastern Reception Diagnostic and
Correctional Center (“ERDCC”). Plaintiff names
the following employees of ERDCC as defendants: Darrell
Wagganer (Investigator), Amy Roderick (Inspector General),
Joe Hoffmeister (Deputy Warden), Teri Lawson (Assistant
Warden), Stan Jackson (Deputy Warden), Troy Steele (Warden),
Sean Wescott (Corrections Lieutenant), Dennis Martin
(Corrections Officer), Douglas Montgomery (Functional Unit
Manager (“FUM”)), Dale Phillips (FUM), and Derek
Barker (Corrections Case Manager).
September 2, 2015, plaintiff was accused of a Prison Rape
Elimination Act (“PREA”) crime investigated by
defendant Wagganer. Another inmate, Mitchell, gave staff at
ERDCC a PREA kite that plaintiff forced another inmate,
Ponticello, to have deviant sexual intercourse with
plaintiff. Defendant Wagganer obtained a DNA sample from
plaintiff, interviewed plaintiff twice, interviewed the
victim, ordered a rape kit examination of the victim, and
prepared an investigator's report.
December 4, 2015, plaintiff had a disciplinary hearing before
an Adjustment Board Committee regarding his PREA conduct
violation. Defendant Montgomery read plaintiff's Rule 7.1
conduct violation report, and asked plaintiff if he had a
statement. Plaintiff gave the committee a two-page written
statement with supporting documentary evidence. Plaintiff
told the committee that he had asked for videotape footage
and to interview several witnesses. The Committee had not
reviewed any videotape footage, and no witnesses were called
at the hearing.
committee relied on defendant Wagganer's
investigator's report and found plaintiff guilty of
forcible sexual misconduct. Plaintiff states he has not seen
the investigator's report, and no evidence was presented
during his disciplinary hearing that would allow for a
finding of guilt. Plaintiff was sanctioned to thirty days
disciplinary segregation, referred to administrative
segregation, and referred for prosecution. Plaintiff grieved
this sanction twice, but his grievances and subsequent
appeals were denied.
complains that the sanctions were unlawful because there was
no evidence of rape in the record. He also states his
procedural due process rights were violated because the
committee failed to comply with MODOC policy. Because
plaintiff was found guilty of a PREA-related conduct
violation, plaintiff is now classified as a higher risk
offender, a “PREA alpha, ” and is mandated to be
housed with other “alpha only” offenders, who are
typically more aggressive and violent than other offenders.
Additionally, because his custody level has increased, he
states he will not be eligible to participate in work
release, vocational classes, and will not have as much time
out of his cell for other activities. Plaintiff also states
he may be denied parole eligibility during his parole board
hearing, which will be held in October 2019.
Amendment Due Process Claim
alleges that his due process rights were violated when he was
issued a PREA conduct violation because he was denied access
to the videotape evidence and witness statements, which he
claims would have exonerated him at the disciplinary hearing.
He also complains that no evidence ...