United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of Larry Terrell
Howard for leave to commence this action without payment of
the required filing fee. After review of plaintiffs financial
information, the Court finds that plaintiff does not have
sufficient funds to pay the filing fee and will grant
plaintiff leave to proceed in forma pauperis. See 28
U.S.C. § 1915. However, after reviewing plaintiffs
complaint, the Court finds that the complaint should be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
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, 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
Larry Terrell Howard, is a former inmate at Eastern
Reception, Diagnostic and Correctional Center ("ERDCC).
He brings this action pursuant to 42 U.S.C. § 1983
alleging violations of his civil rights by defendant, the
Missouri Department of Corrections ("MDOC").
claims that while he was incarcerated in August of 2017, he
put an order in at the canteen at ERDCC to be filled prior to
him being transferred to attend court in St. Louis County. He
claims that when he returned to ERDCC several days later, he
did not receive the items, nor were the items from the
canteen placed in his property. Plaintiff claims that $32.96
was removed from his inmate account to purportedly pay for
the canteen items, and he was told that because he did not
receive the items, the money would be reimbursed to him.
Plaintiff alleges that the money has still not been
reimbursed, over six months later. Plaintiff does not explain
how the money was supposed to be reimbursed to him now that
he is no longer incarcerated.
relief in this action, plaintiff seeks $18, 000.
claims are brought pursuant to 42 U.S.C. § 1983, and
they are described as: "withholding funds, " and
"defrauding reimbursement, " and "withholding
wages." However, regardless as to how plaintiff
characterizes defendant's purported behavior, his
assertions allegedly refer to plaintiffs belief that MDOC
failed to provide him with the $32.96 worth of canteen
supplies that he ordered in August of 2017 at ERDCC.
plaintiffs complaint fails to state a claim against the
Missouri Department of Corrections because an agency
exercising state power is not a "person" subject to
a suit under § 1983. See Will v. Michigan Dept. of
State Police, 491 U.S. 58, 63 (1989). As such, this
matter is subject to dismissal for failure to state a claim
upon which relief may be granted.
IT IS HEREBY ORDERED that plaintiffs motion
to proceed in forma pauperis [Doc. #3] is
IS FURTHER ORDERED that this action is
DISMISSED pursuant to 28 ...