Schmedeke v. Missouri Department of Corrections et al, No. 4:2012cv00603 - Document 8 (E.D. Mo. 2012)

Court Description: OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs motions to proceed in forma pauperis [Doc. #2 and #6] are 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 appropriate Order of Dismissal shall accompany this Memorandum and Order. 6 2 Signed by District Judge Henry E. Autrey on 7/19/12. (CLA)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION JAMES JOHN SCHMEDEKE, Plaintiff, v. MISSOURI DEPT. OF CORR., et al., Defendants. ) ) ) ) ) ) ) ) ) No. 4:12CV603 HEA OPINION, MEMORANDUM AND ORDER This matter is before the Court upon the motion of plaintiff for leave to commence this action without prepayment of the filing fee pursuant to 28 U.S.C. § 1915. Upon consideration of the financial information provided with the motion, the Court finds that plaintiff is financially unable to pay any portion of the filing fee. As a result, plaintiff will be granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Additionally, the Court has reviewed the complaint and will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B). 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 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). 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). 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 conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 51-52. -2- The Complaint Plaintiff, a former inmate at Western Reception, Diagnostic and Correctional Center, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights. Named as defendants are: the Missouri Department of Corrections ( MDOC ); George Lombardi (Director, MDOC); Missouri Board of Probation and Parole; Betty Wehmeyer (Record Officer); Leah Embly (District Parole Officer, Missouri Eastern Corr. Center); Mary Green (Records Officer); S. Vorshee (CWA III); Legal Review (MDOC); and Wade Beers (District Parole Officer). Plaintiff s complaint appears to allege that defendants incorrectly calculated the time plaintiff spent in prison on his prior sentence of driving on a revoked license. Plaintiff seeks to hold defendants liable for the allegedly improper calculations with regard to his time served. Plaintiff seeks monetary damages and injunctive relief.1 Discussion The complaint fails to state a claim against the Missouri Department of Corrections (MDOC). E.g., Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 948 F.2d 1084, 1086 (8th Cir. 1991) (agency exercising state power is not 1 At the time plaintiff filed this action he was incarcerated at the Western Reception, Diagnostic and Correctional Center. Since that time, plaintiff has been released. Accordingly, his request for injunctive relief is moot. -3- person subject to § 1983 suit). As a result, the complaint shall be dismissed as to the MDOC pursuant to 28 U.S.C. § 1915(e)(2)(B). The complaint is silent as to whether the remaining state employee 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 v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). [N]either a State nor its officials acting in their official capacities are persons under § 1983. Id. As a result, the complaint fails to state a claim upon which relief can be granted. Accordingly, IT IS HEREBY ORDERED that plaintiff s motions to proceed in forma pauperis [Doc. #2 and #6] are 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. -4- An appropriate Order of Dismissal shall accompany this Memorandum and Order. Dated this 19th day of July, 2012. HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE -5-