Brown v. Babich et al, No. 1:2009cv00164 - Document 8 (E.D. Mo. 2010)
Court Description: OPINION MEMORANDUM...IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $1.75 within thirty (30) days of the date of this O rder. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. #3] is DENIED as moot. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because the complaint is legal ly frivolous and fails to state a claim upon whichrelief can be granted. An appropriate Order of Dismissal shall accompany this Memorandum and Order.( Initial Partial Filing Fee due by 2/12/2010.) Signed by Honorable Henry E. Autrey on 1/13/2010. (JMC)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION JUAN V. BROWN, Plaintiff, v. GLEN BABICH, et al., Defendants. ) ) ) ) ) ) ) ) ) No. 1:09CV164 LMB OPINION, MEMORANDUM AND ORDER This matter is before the Court upon the motion of Juan V. Brown (registration no. 1032491) for leave to commence this action without payment of the required filing fee [Doc. #2]. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee. The Court will assess an initial partial filing fee of $1.75. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that this action 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 plaintiff s account indicates an average monthly deposit of $8.75, and an average monthly balance of $.78. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $1.75, 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 fails to state a claim upon which relief can be granted if it does not plead enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). -2- The Complaint Plaintiff, an inmate at Southeast Correctional Center ( SCC ), seeks monetary relief in this action for the violation of his constitutional rights under 42 U.S.C. § 1983. Named as defendants are Dr. Glen Babich, Jeffrey A. Loomes, Dan Martinez, Regina Cook, Troy Steele, Gregory Hancock, Debbie Vinson, Heather Cato, Amanda Gibson, Mickey Lizenbeth, Debbie Deborah, Alexis Johnson, Warren Moore, Deanna Sullivan, Pam Lacey, Tracy Mitchem, and Omer L. Clark. Plaintiff alleges that defendants have violated his Eighth Amendment rights by denying him recreation on June 30, 2009, issuing him a false conduct violation, making threats and calling him names, failing to respond to his complaints, using excessive force against him, and denying him adequate medical care. Discussion Plaintiff brings this action against defendants in their official capacities. See Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995)(where a complaint is silent about defendant s capacity, Court must interpret the complaint as including official-capacity claims); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989). Naming a government official in his or her official capacity is the equivalent of naming the government entity that employs the official, in this case the State of Missouri. See Will v. Michigan Dep t of State Police, 491 U.S. 58, 71 (1989). [N]either a State nor its officials acting in their official capacity are persons under § 1983. Id. As a result, the complaint is legally frivolous and fails to state a claim upon which relief can be granted. In addition, the Court finds that plaintiff s conclusory allegations that defendant Loomes made threats and called him a snitch and a child molester do not rise to the level of a constitutional violation and are legally frivolous. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)(legal conclusions and -3- threadbare recitals of the elements of a cause of action that are supported by mere conclusory statements are not entitled to the assumption of truth); Burton v. Livingston, 791 F.2d 97, 99-100 (8th Cir. 1986)(usually, mere words, without more, do not invade federally protected right; "rough language" resulting only in hurt feelings not actionable under § 1983); Martin v. Sargent, 780 F.2d 1334, 1338-39 (8th Cir. 1985)(verbal threats and name calling usually are not actionable under § 1983). Similarly, plaintiff s claims that he was refused recreation on June 30, 2009, and was given a false conduct violation do not implicate constitutionally-protected interests, because they do not concern an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472 (1995). Last, plaintiff s numerous claims that he made both oral and written complaints to various supervisors, who did not offer any solution or show concern, are also legally frivolous and fail to state a claim or cause of action under § 1983. See Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995)(respondeat superior theory inapplicable in § 1983 suits); Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997)(noting that general responsibility for supervising operations of prison is insufficient to establish personal involvement required to support liability under § 1983); Rivera v. Goord, 119 F.Supp.2d 327, 344 (S.D.N.Y.2000) (allegations that inmate wrote to prison officials and was ignored insufficient to hold those officials liable under § 1983); Woods v. Goord, 1998 WL 740782, at *6 (S.D.N.Y. Oct.23, 1998) (receiving letters or complaints does not render prison officials personally liable under § 1983); Watson v. McGinnis, 964 F.Supp. 127, 130 (S.D.N.Y.1997) (allegations that an official ignored a prisoner's letter are insufficient to establish liability). Accordingly, -4- IT IS HEREBY ORDERED that plaintiff s motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of $1.75 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 registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that plaintiff s motion for appointment of counsel [Doc. #3] is DENIED as moot. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because the complaint is legally frivolous and fails to state a claim upon which relief can be granted. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Dated this 13th day of January, 2010. UNITED STATES DISTRICT JUDGE -5-
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