Brown El v. St. Louis Community Release Center et al, No. 4:2010cv00457 - Document 5 (E.D. Mo. 2010)

Court Description: OPINION MEMORANDUM & ORDER. IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. #4] is GRANTED. 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 or fails to state a claim upon which relief can be granted, or both. An Order of Dismissal will accompany this Memorandum and Order. See Order for further details. Signed by Honorable Henry E. Autrey on 05/03/2010. (CBL)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION KEITH E. BROWN-EL, ) ) Plaintiff, ) ) v. ) ) ST. LOUIS COMMUNITY RELEASE ) CENTER, et al., ) ) Defendants. ) No. 4:10CV457 HEA OPINION, MEMORANDUM AND ORDER This matter is before the Court upon the motion of Keith E. Brown-El (registration no. 166051), an inmate at Eastern Reception Diagnostic and Correctional Center, for leave to commence this action without payment of the required filing fee [Doc. #4]. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $1.98. 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). 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 $9.92, and an average monthly balance of $1.13. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $1.98, 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 must 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 from a defendant who is immune from -2- such relief. An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 112 S. Ct. 1728, 1733 (1992). An action is malicious if it is undertaken for the purpose of harassing the named defendants 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). A complaint fails to state a claim if it does not plead enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). The Complaint Plaintiff brings this action under 42 U.S.C. § 1983 for denial of his right of access to the courts. Named as defendants are the St. Louis Community Release Center ( SLCRC ), Janet Schnieder (Superintendent, SLCRC), and Doug Holmes (Functional Unit Manager, SLCRC). Plaintiff seeks declaratory and monetary relief. Plaintiff previously brought a lawsuit in this Court alleging that he was given a false conduct violation for being out of bounds during his civilian work program. Brown El v. Schneider, 4:06CV1000 DJS. Defendants moved to dismiss the case because plaintiff had not exhausted his administrative remedies. Defendants produced plaintiff s grievance file to the Court, which did not contain any grievances regarding -3- the issue at hand in that case. After reviewing the matter, the Court dismissed that action for failure to exhaust available remedies. In this case, plaintiff alleges that defendants intentionally removed from his file the grievance he had actually filed before bringing the previous action. That is, plaintiff claims that he did exhaust his available remedies but that defendants removed the evidence thereof so that the previous action would be dismissed. Plaintiff seeks damages based on the dismissal of the previous case. Discussion A claim against SLCRC is, in effect, a claim against the State of Missouri. The State of Missouri, however, is absolutely immune from liability under § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 63 (1989). As a result, plaintiff s claims against SLCRC must be dismissed due to immunity. The complaint is silent as to whether the individual defendants are being sued in their official or individual capacities. Where a complaint is silent about the capacity in which [plaintiff] is suing defendant, [a district court must] interpret the complaint as including only official-capacity claims. Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995); 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. Will -4- 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 fails to state a claim upon which relief can be granted as to defendants Schnieder and Holmes. For these reasons, the Court will dismiss this action under 28 U.S.C. § 1915(e)(2)(B). Accordingly, IT IS HEREBY ORDERED that plaintiff s motion to proceed in forma pauperis [Doc. #4] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.98 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 the Clerk shall not issue process or cause process to issue upon the complaint because the complaint is legally frivolous or fails -5- to state a claim upon which relief can be granted, or both. An Order of Dismissal will accompany this Memorandum and Order. Dated this 3rd day of May, 2010. HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE -6-