No. 1:10CV59 SNLJ.United States District Court, E.D. Missouri, Southeastern Division.
April 26, 2010
MEMORANDUM AND ORDER
STEPHEN LIMBAUGH JR., Senior District Judge
This matter is before the Court upon the motion of Daniel Hicks (registration no. 1138307), an inmate at Southeast Correctional Center, 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 and will assess an initial partial filing fee of $1.70. 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
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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 $8.50, and an average monthly balance of $0.65. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $1.70, 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 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,
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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’d826 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 and the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. Named as defendants are Jay Nixon (Governor, State of Missouri), the Missouri Department of Corrections, Dwayne Kemper (Deputy Director, Missouri Department of Corrections), Troy Steele (Warden, SECC), Unknown Calhoun (Correctional Officer, SECC), Unknown Gilligan (same), Unknown Booth (same). The complaint seeks injunctive and monetary relief.
Plaintiff alleges that unspecified prison officials caused him to be placed on top walk and top bunk when his medical needs dictate that he should be on bottom walk and bottom bunk. Plaintiff says that, as a result of the misplacement, he fell from the top bunk and injured himself. Plaintiff claims that he continues to be placed on top
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bunk. Plaintiff further alleges, “I am covered under the Americans with Disabilities Act.”
Discussion
“Liability under § 1983 requires a causal link to, and direct responsibility for, the alleged deprivation of rights.” Madewellv. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990); see also Martinv. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim not cognizable under § 1983 where plaintiff fails to allege that defendant was personally involved in or directly responsible for the incidents that injured plaintiff); Boyd v.Knox, 47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in § 1983 suits). In the instant action, plaintiff has not set forth any facts indicating that any of the named individual defendants were directly involved in or personally responsible for the alleged violations of his constitutional rights. As a result, the complaint fails to state a claim upon which relief can be granted as to the individual defendants under § 1983.
The 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. E.g.,Barket, Levy Fine, Inc. v. St. Louis Thermal Energy Corp., 948 F.2d 1084, 1086 (8th Cir. 1991).
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“To state a prima facie claim under [Title II of] the ADA, a plaintiff must show: 1) he is a person with a disability as defined by statute; 2) he is otherwise qualified for the benefit in question; and 3) he was excluded from the benefit due to discrimination based upon disability.” Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999). Plaintiff’s ADA claim fails as a matter of law because there are no allegations showing that plaintiff is a qualified individual with a disability under 42 U.S.C. § 12131. Furthermore, plaintiff’s claim under the ADA is wholly conclusory and does not set forth specific facts demonstrating a claim that is facially plausible.
For these reasons, the Court will dismiss this action under 28 U.S.C. § 1915(e).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $1.70 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.
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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.