Opinion
No. 4:09-CV-1953 CAS.
January 7, 2010
MEMORANDUM AND ORDER
This matter is before the Court on the motion of Gregory Scott (registration no. 1142664), an inmate at Northeast Correctional Center, 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 assess an initial partial filing fee of $6.75. See 28 U.S.C. § 1915(b)(1). Further, 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 $33.75, and an average monthly balance of $2.82. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $6.75, 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 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). 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, 550 U.S. 544, 570 (2007).
The Complaint
Plaintiff brings this action under 42 U.S.C. § 1983 against Harry Gamble (Correctional Case Worker, Farmington Correctional Center) and the Missouri Department of Corrections. Plaintiff seeks monetary and injunctive relief.
Plaintiff alleges that he was convicted of enticement of a minor and attempted statutory rape. Plaintiff says he was sentenced to four years' imprisonment. Plaintiff appealed his judgment of conviction, and the Missouri Court of Appeals affirmed.
Plaintiff claims that when he was sent to Farmington Correctional Center ("FCC"), he had a preexisting condition of generalized anxiety due to an underlying impulse disorder, for which he was taking medications. Plaintiff alleges that Gamble refused to allow plaintiff to have any of his medications as punishment for plaintiff having appealed his criminal conviction.
Upon his commitment at FCC, plaintiff's appeal was pending. Plaintiff says that, during this time, he requested treatment for his sexual disorder and was admitted to the Missouri Sex Offender Program ("MOSOP"). Plaintiff alleges that Gamble pulled him from MOSOP in retaliation for plaintiff having filed an appeal. Plaintiff claims he tried to withdraw his appeal, but Gamble refused to allow plaintiff to complete MOSOP.
Discussion
The complaint is silent as to whether defendant Gamble is being sued in his official or individual capacity. 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 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 defendant Gamble.
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. See, e.g., Barket, Levy Fine, Inc. v. St. Louis Thermal Energy Corp., 948 F.2d 1084, 1086 (8th Cir. 1991). As a result, the complaint will be dismissed under 28 U.S.C. § 1915(e).
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis is GRANTED. [Doc. 2]
IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $6.75 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 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.