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Lam v. Baliva

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

August 23, 2019

JAMES LAM III, Plaintiff,
v.
UNKNOWN BALIVA, et al., Defendants.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the motion of James Lam III (registration no. 1216908), an inmate at Cape Girardeau County Jail, for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will waive the initial partial filing fee at this time. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will partially dismiss the complaint and will order the Clerk to issue process or cause process to be issued on the non-frivolous portions of the complaint.

         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 plaintiff's account indicates that plaintiff has a negative account balance at this time. The Court shall request that the agency having custody of plaintiff begin making payments in accordance with 28 U.S.C. § 1915(b)(2) when funds exist, until the full filing fee of $350 is paid in full.

         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 plaintiff's 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 a violation of his constitutional rights. He names the following individuals as defendants in this action: the County of Cape Girardeau; Ruth Ann Dickerson (Sheriff, Cape Girardeau County); J. P. Mulcahy (Captain, Cape Girardeau County Jail); Unknown Umphlett (Officer, Cape Girardeau County Sheriff's Department); Unknown Holland (Officer, Cape Girardeau County Sheriff's Department); Unknown Dacus (Officer, Cape Girardeau County Sheriff's Department); Unknown Williams (Officer, Cape Girardeau County Sheriff's Department); and Unknown Baliva (Officer, Cape Girardeau County Sheriff's Department). Plaintiff brings this action against defendants in both their individual and official capacities.

         Plaintiff asserts in a conclusory manner that he has been denied “access to courts” at the Cape Girardeau County Jail in Jackson, Missouri, because the only legal materials at the Jail consist of a set of Missouri law books dated 1994, which plaintiff believes to be outdated. Plaintiff states that he filed several grievances at the Jail asking for additional legal materials, including updated “lawbooks, ” a book about the “14 Amendments, ” or a kiosk with Justia on it like the one at the Perry County Jail.[1] However, defendants either failed to respond to his grievances or told him to seek assistance from the Court or his family regarding obtaining legal materials. Plaintiff states that he needed the legal materials in order to prepare himself for his “federal suit” and to “participate in his defense against criminal charges.”

         In Group Affidavit - Attachment I, which the Court incorporates as part of plaintiff's complaint, See Fed.R.Civ.P.10(c), plaintiff states in a conclusory manner that he believes that he was retaliated against for filing a lawsuit in this Court by defendant Dacus, in that he was taken from his living area on July 18, 2019, cuffed up, taken to disciplinary segregation and kept there for four hours. Plaintiff states that he asked defendant Dacus if he was having him handcuffed in retaliation for “the lawsuit he filed against him.” Defendant Dacus allegedly replied, “Yes, and retaliation for disturbing the peace, inciting a riot, and whatever else I can write you up for.”

         Plaintiff admits that at the time he was taken to the isolation cell, he had been in F Pod and defendant Dacus had come into the pod with Correctional Officer Brown to collect lunch trays from the inmates. Dacus told the inmates to turn in their sporks and cups. And when he found they were three cups and sporks short, he yelled if they weren't turned in, the entire pod would be searched. Plaintiff states that when all of the inmates started to talk to the officers at once, plaintiff told the officers that the cells were overcrowded and there weren't enough mattresses, blankets or necessities to go around. He told Dacus and Brown, “If you guys do your job, then we would have cups and sporks to turn in.” It was at this point, according to plaintiff that he was instructed to cuff-up and he was taken to the isolation cell by Dacus, who told Balivia that plaintiff had incited a riot and he was being punished. Balivia told Dacus to put him in isolation.

         Plaintiff states that defendant Balivia told him when he released him from isolation four hours later that if he kept filing legal papers against the Jail and the Correctional Officers that “it will only get worse for you.”

         Plaintiff seeks injunctive relief and compensatory and punitive damages.

         Discussion

         The Court will issue process on plaintiff's claim for First Amendment retaliation against defendant Dacus in his individual capacity. To state a prima facie case for First Amendment retaliation, plaintiff must allege that he engaged in protected activity and that defendants, to retaliate for the protected activity, took adverse action against plaintiff that would chill a person of ordinary firmness from engaging in that activity. See Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004), cert. denied, 546 U.S. 860 (2005). The Court believes that plaintiff's allegations against defendant Dacus relative to his comments about purportedly handcuffing him and then placing him in isolation for, in part, filing a lawsuit against plaintiff, are enough to pass initial review on a First Amendment retaliation claim against defendant Dacus in his individual capacity.

         Similarly, the Court will also issue process on defendant's claim for retaliation against defendant Balivia in his individual capacity. Plaintiff claims that defendant Balivia threatened him by telling him it would only get worse for him if he continued filing legal papers against the Jail and the Correctional Officers. “[A] threat of retaliation is sufficient injury if made in retaliation for an inmate's use of prison grievance procedures” or for utilizing one's ability to access the Courts. Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994). Although plaintiff does not indicate if the threat was in relation to the grievance procedures or his lawsuit, the Court believes as alleged, and taking plaintiff's allegations as true, this claim is enough to serve process on against defendant Balivia at this time.

         Plaintiff's claims against the remaining defendants are subject to dismissal, however, as he has failed to state a claim for access to the Courts. And to the extent he is bringing claims relating to defendants' failure to properly respond to his ...


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