Opinion

Woodard v. Villmer

Court
District Court, E.D. Missouri
Filed
Aug 28, 2019
Cited by
0 cases
Authority
More cited than 24.0%

affirming district court’s dismissal of Monell claim where plaintiff “alleged no facts in his complaint that would demonstrate the existence of a policy or custom” that caused the alleged deprivation of plaintiff’s rights

How later courts described this case

  • affirming district court’s dismissal of Monell claim where plaintiff “alleged no facts in his complaint that would demonstrate the existence of a policy or custom” that caused the alleged deprivation of plaintiff’s rights
  • noting that state prison regulations are “not designed to confer rights on inmates”
  • “We have consistently held that administrative and disciplinary segregation are not atypical and significant hardships under Sandin.”
  • stating that an inmate charged with a major conduct violation was not entitled to a polygraph examination as to whether he participated in planning or furthering an escape

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

HUNTER WOODARD, )

)

Plaintiff, )

)

v. ) No. 4:18-CV-1836 JCH

)

TOM VILLMER, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court upon the motion of Hunter Woodard (registration no.

42995), an inmate at Southeast Correctional Center (“SECC”), 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 $31.75. 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

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

$10.00, 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 $158.75. Accordingly, the Court will

assess an initial partial filing fee of $31.75.

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma

pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.

To state a claim for relief under § 1983, a complaint must plead more than “legal conclusions”

and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere

conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”

Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief is a

context-specific task that requires the reviewing court to, inter alia, draw upon judicial

experience and common sense. Id. at 679.

Pro se complaints are to be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106

(1976). However, they still must allege sufficient facts to support the claims alleged. Stone v.

Harry, 364 F.3d 912, 914-15 (8th Cir. 2004); see also Martin v. Aubuchon, 623 F.2d 1282, 1286

(8th Cir. 1980) (even pro se complaints are required to allege facts which, if true, state a claim

for relief as a matter of law). Federal courts are not required to “assume facts that are not

alleged, just because an additional factual allegation would have formed a stronger complaint.”

Stone, 364 F.3d at 914-15. In addition, giving a pro se complaint the benefit of a liberal

construction does not mean that procedural rules in ordinary civil litigation must be interpreted

so as to excuse mistakes by those who proceed without counsel. See McNeil v. U.S., 508 U.S.

106, 113 (1993).

The Complaint

Plaintiff, who is currently incarcerated at SECC, brings this action pursuant to 42 U.S.C.

§ 1983 alleging violations of his civil rights during his incarceration at Farmington Correctional

Center (“FCC”) in Farmington, Missouri. He names the following individuals as defendants:

Tom Villmer (Warden, FCC); James Griffin (Correctional Officer, FCC); Paul Blair (Functional

Unit Manager, FCC); Robin Thomas (Caseworker, FCC); and James Horn (Correctional Officer,

FCC). Plaintiff brings this action against defendants in their individual and official capacities.

Plaintiff claims that on October 25, 2016, he was in Housing Unit 3, and Officer James

Griffin gave plaintiff a conduct violation for possession/use of an intoxicating substance when

Griffin found “six small bullets of an unknown green leafy substance appearing to resemble K-2”

at plaintiff’s feet.

Plaintiff states that after finding the “bullets” of what appeared to be K-2, Griffin took

plaintiff to medical for review and then placed plaintiff in segregation that same day.

Plaintiff asserts that after he was taken to segregation, he requested a drug test, a “truth

verification exam” and a test of the “contraband,” but he does not indicate to whom he made

these requests or why the requests were denied, if indeed they were denied.

Plaintiff states that on October 28, 2016, he “went before the adjustment board” relative

to the conduct violation. Plaintiff chose not to testify on his own behalf, and he chose not to have

any witnesses to testify at his hearing.

Plaintiff states that at the hearing on that date, there was a written report submitted by

James Griffin relating to the incident, as well as picture evidence of the alleged K-2 bullets. A

statement from the investigator, named “Ralph” was also given by phone. During Ralph’s

statement, he indicated that contraband was tested and it did not test positive for THC and was

suspected to be K-2.

Plaintiff claims that a finding of guilty was made on that date by the adjustment board,

even though he did not have any “documentary evidence” of his own. Plaintiff does not indicate

exactly what documentary evidence he would have provided at the hearing.1 Plaintiff alleges that

the disciplinary hearing “failed to follow the mandates of” the Missouri Department of

Correction’s policies and procedures. Plaintiff believes this resulted in a due process violation.

Plaintiff also complains that the adjustment board did not engage in enough fact-finding

on their own. He states that he believes they placed too much weight on Officer Griffin’s

statement, rather than “acting impartially.”

Plaintiff asserts that the adjustment board gave him the following as sanctions after

finding him guilty of the offense of “possession/use of an intoxicating substance:” 30 days

segregation, one year no premium paying job, recommended for transfer, one year no-contact

visits, and referred to the Administrative Segregation Committee.

Plaintiff claims that he went before the Administrative Segregation Committee on

November 22, 2016 regarding the conduct violation. He complains that Jason Horn improperly

1 The Court presumes that plaintiff is referring to his prior request to an unknown and unnamed party to be “drug

tested” and have a “truth verification exam.” As noted, the purported K-2 was tested by the prison officials and the

report was given on the results of the test during the hearing. However, it appears that plaintiff believes the failure to

provide him with drug testing was a violation of his due process rights.

sat on both the adjustment board and the Administrative Segregation Committee, which

approved his transfer to another facility and approved the removal of plaintiff’s grandfathered

property. Plaintiff believes that this was also a violation of his due process rights.

Plaintiff also states that he believes his equal protection rights were violated because the

purported K-2 was found in his cell’s “common” area, and he was given the conduct violation

and his cellmate was not. However, plaintiff, himself, states that the K-2 was found “at his feet.”

Moreover, he does not indicate exactly why he believes his “equal protection rights” were

violated with respect to his cellmate.

Plaintiff seeks injunctive relief and compensatory and punitive damages.

Discussion

A. Official Capacity Claims

In an official capacity claim against an individual, the claim is actually “against the

governmental entity itself.” See White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017). Thus, a

“suit against a public employee in his or her official capacity is merely a suit against the public

employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). See also

Brewington v. Keener, 902 F.3d 796, 800 (8th Cir. 2018) (explaining that official capacity suit

against sheriff and his deputy “must be treated as a suit against the County”); Kelly v. City of

Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir. 2016) (stating that a “plaintiff who sues public

employees in their official, rather than individual, capacities sues only the public employer”);

and Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (stating that a “suit against a public

official in his official capacity is actually a suit against the entity for which the official is an

agent”). In order to prevail on an official capacity claim, the plaintiff must establish the

governmental entity’s liability for the alleged conduct. Kelly, 813 F.3d at 1075.

“Section 1983 provides for an action against a ‘person’ for a violation, under color of

law, of another’s civil rights.” McLean v. Gordon, 548 F.3d 613, 618 (8th Cir. 2008). However,

“neither a State nor its officials acting in their official capacity are ‘persons’ under § 1983.” Will

v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). See also Calzone v. Hawley, 866 F.3d

866, 872 (8th Cir. 2017) (stating that a “suit for damages against a state official in his official

capacity is a suit against the State, and the State is not a person under § 1983”).

Defendants are all employed by the Missouri Department of Corrections. The Missouri

Department of Corrections is a state agency of the State of Missouri. Therefore, plaintiff’s claims

against defendants in their official capacities are actually claims against the State of Missouri,

their employer. As noted above, however, neither a State nor its officials are “persons” for

purposes of 42 U.S.C. § 1983. Accordingly, plaintiff has failed to state a claim against these

defendants in their official capacities.

Even if this were not the case, plaintiff has not shown that the Missouri Department of

Corrections is liable for his alleged constitutional violations. A governmental entity can be sued

directly under § 1983. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690

(1978). Liability under § 1983 may attach if the constitutional violation resulted from (1) an

official policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or

supervise. See Mick v. Raines, 883 F.3d 1075, 1089 (8th Cir. 2018). See also Marsh v. Phelps

Cty., 902 F.3d 745, 751 (8th Cir. 2018) (recognizing “claims challenging an unconstitutional

policy or custom, or those based on a theory of inadequate training, which is an extension of the

same”). Thus, there are three ways in which plaintiff can prove the liability of a governmental

entity.

First, plaintiff can show the existence of an unconstitutional policy. “Policy” refers to

“official policy, a deliberate choice of a guiding principle or procedure made by the municipal

official who has final authority regarding such matters.” Corwin v. City of Independence, Mo.,

829 F.3d 695, 700 (8th Cir. 2016). See also Russell v. Hennepin Cty., 420 F.3d 841, 847 (8th Cir.

2005) (“A policy is a deliberate choice to follow a course of action made from among various

alternatives by the official or officials responsible…for establishing final policy with respect to

the subject matter in question”). For a policy that is unconstitutional on its face, a plaintiff needs

no other evidence than a statement of the policy and its exercise. Szabla v. City of Brooklyn,

Minn., 486 F.3d 385, 389 (8th Cir. 2007). However, when “a policy is constitutional on its face,

but it is asserted that a municipality should have done more to prevent constitutional violations

by its employees, a plaintiff must establish the existence of a ‘policy’ by demonstrating that the

inadequacies were a product of deliberate or conscious choice by the policymakers.” Id. at 390.

Alternatively, plaintiff can establish a claim of liability based on an unconstitutional

“custom.” In order to do so, plaintiff must demonstrate:

1) The existence of a continuing, widespread, persistent pattern of

unconstitutional misconduct by the governmental entity’s

employees;

2) Deliberate indifference to or tacit authorization of such conduct

by the governmental entity’s policymaking officials after

notice to the officials of that misconduct; and

3) That plaintiff was injured by acts pursuant to the governmental

entity’s custom, i.e., that the custom was a moving force

behind the constitutional violation.

Johnson v. Douglas Cty. Med. Dep’t, 725 F.3d 825, 828 (8th Cir. 2013).

Finally, plaintiff can show the liability of a governmental entity by establishing a

deliberately indifferent failure to train or supervise. To do so, plaintiff must allege a “pattern of

similar constitutional violations by untrained employees.” S.M. v. Lincoln Cty., 874 F.3d 581,

585 (8th Cir. 2017).

Plaintiff’s extensive complaint contains no allegations pertaining to any policy, custom,

or failure to train or supervise on the part of the Missouri Department of Corrections. As such,

plaintiff has failed to state a claim against it. Therefore, plaintiff’s official capacity claims must

be dismissed. See Ulrich v. Pope Cty., 715 F.3d 1054, 1061 (8th Cir. 2013) (affirming district

court’s dismissal of Monell claim where plaintiff “alleged no facts in his complaint that would

demonstrate the existence of a policy or custom” that caused the alleged deprivation of plaintiff’s

rights).

B. Individual Capacity Claims Against Defendants Tom Villmer, Paul Blair and Robin

Thomas

Plaintiff’s individual capacity claims against defendant Tom Villmer, Warden at FCC,

Paul Blair, Functional Unit Manager, and Robin Thomas, Caseworker, must be dismissed

because plaintiff has not alleged that these individuals had any personal responsibility for the

purported constitutional violations.

Vicarious liability is inapplicable to § 1983 suits. Marsh, 902 F.3d at 754. As such,

“[g]overnment officials are personally liable only for their own misconduct.” S.M. v. Krigbaum,

808 F.3d 335, 340 (8th Cir. 2015). Thus, “a supervising officer can be liable for an inferior

officer’s constitutional violation only if he directly participated in the constitutional violation, or

if his failure to train or supervise the offending actor caused the deprivation.” Parrish v. Ball,

594 F.3d 993, 1001 (8th Cir. 2010). See also Moore v. City of Desloge, Mo., 647 F.3d 841, 849

(8th Cir. 2011) (stating that in order to maintain an action for training or supervisory liability, the

plaintiff must show that the failure to train or supervise caused the injury).

Plaintiff essentially alleges that defendants Villmer, Blair and Thomas should be held

liable for violating his due process rights because they ruled against his arguments in his

Institutional Resolution Request and grievance responses asserting that he should not be liable

for a conduct violation. He fundamentally states that these individuals had the ability, to overrule

the Adjustment Board pursuant to their authority at MDOC.

The mere signing a grievance response not enough to establish the personal liability of

Villmer, Blair or Thomas for any alleged constitutional violations. See Camberos v. Branstad, 73

F.3d 174, 176 (8th Cir. 1995) (stating that “a general responsibility for supervising the operations

of a prison is insufficient to establish the personal involvement required to support liability”).

Although it is not clear if these defendants were involved in plaintiff’s requests, at

various points in the complaint, plaintiff also suggests that he should have been allowed to

receive drug testing or be “truth tested.”2

To the extent that plaintiff is asserting that his inability to be drug tested or be “truth

tested” violates his due process rights, such a claim must fail. Plaintiff does not have a

constitutional right to a voice stress analysis as part of the prison disciplinary proceedings against

him. See Freitas v. Auger, 837 F.2d 806, 812 n.13 (8th Cir. 1988) (stating that an inmate charged

with a major conduct violation was not entitled to a polygraph examination as to whether he

participated in planning or furthering an escape); Hill v. Rectenwald, 2010 WL 2610667, at *3

(E.D. Ark. 2010) (stating that plaintiff did not have constitutional right to use of a voice stress

analysis in conjunction with an investigation into his complaints against a prison doctor); and

Boyd v. Anderson, 265 F. Supp. 952, 962 (N.D. Ind. 2003) (stating that the “due process clause

does not guarantee that a prisoner charged with a disciplinary offense will receive a voice stress

test”); Louis v. Department of Correctional Services of Nebraska, 437 F.3d 697, 701 (8th Cir.

2Although prisoners charged with a disciplinary violation have a right of reasonable access to information necessary

to put on a defense. Meis v. Gunter, 906 F.2d 364, 367 (8th Cir.1990). The right is circumscribed by legitimate

penological considerations. Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974) (officials have discretion to limit

access to protect legitimate goals); Smith v. Rabalais, 659 F.2d 539, 543 (5th Cir.1981) (right of access to

information to prepare a defense not unqualified), cert. denied, 455 U.S. 992 (1982).

2006) (“[s]tates need not implement all possible procedural safeguards against erroneous

deprivation of liberty when utilizing results of scientific testing devices in accusatory

proceedings”) citing Spence v. Farrier, 807 F.2d 753, 756 (8th Cir. 1986). Accordingly, for these

reasons, plaintiff’s individual capacity claims against defendants Villmer, Blair and Thomas

must be dismissed.

C. Individual Capacity Claim Against Defendant James Griffin and Jason Horn

Plaintiff has not stated specifically how he believes his due process rights were violated

by defendant Griffin. It appears, however, he strongly disagrees with defendant Griffin

attributing the alleged K-2 to him, rather than his cellmate. Additionally, he appears to refute the

use of Griffin’s report as it was used at the adjustment board and the Administrative Segregation

Hearing.

Plaintiff also claims that his Fourteenth Amendment right to due process was violated

when he was found guilty of the conduct violation of “possession/use of an intoxicating

substance” and referred for prosecution without being “truth tested,” “drug tested” and given a

copy of the drug testing report. The Court reviewed the liability of defendants to “truth test” and

“drug test” plaintiff above.” The Court will address plaintiff’s contention that he was entitled to a

copy of the drug testing report prior to the hearing infra.

Additionally, plaintiff claims that defendant Horn acted against MDOC Policy by serving

on both the adjustment board and the Administrative Segregation Hearing.

In a disciplinary action situation, procedural due process requires that: (1) written notice

of the charges be provided to the inmate with at least twenty-four hours to prepare for the

hearing; (2) the inmate be provided with a written statement by the factfinders discussing the

evidence and reasons supporting the action; and (3) the inmate be afforded the opportunity, so far

as safety and security allow, to call witnesses and present documentary evidence. Wolff v.

McDonnell, 418 U.S. 539, 563-66 (1974); Tyler v. Black, 811 F.2d 424, 429 (8th Cir. 1987), cert.

denied, 490 U.S. 1027 (1989).

The Supreme Court has held that due process is satisfied if a disciplinary board’s findings

“are supported by some evidence in the record.” Superintendent, Mass. Corr. Institution,

Walpole v. Hill, 472 U.S. 445, 455-56 (1985); Turner v. Caspari, 38 F.3d 388, 392 (8th

Cir.1994). The Eighth Circuit has held that the results of a drug test are “sufficiently reliable to

meet the requirements of the due process clause.” Spence v. Farrier, 807 F.2d 753, 756 (8th Cir.

1986).

Defendants’ failure to provide plaintiff with a copy of the complete laboratory test results

does not constitute a due process violation. See Harrison v. Dahm, 911 F.2d 37, 41 (8th Cir.

1990) (Wolff does not require that inmate be provided with copy of drug test results in the written

notice, and prison officials are not required to supply an inmate with a copy of test results at the

disciplinary hearing); see also Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993) (same), cert.

denied, 513 U.S. 829 (1994). The Court also concludes that due process does not require the

defendants to provide plaintiff with copies of the target testing requests, as an inmate is only

entitled to advance written notice of the alleged disciplinary violation. See Wolff, 418 U.S. at

563; Harrison, 911 F.2d at 41.

With respect to plaintiff’s allegations that defendants committed multiple violations of

the Missouri Department of Correction’s Policy, there is no federal constitutional liberty interest

in having state prison officials follow prison regulations. Phillips v. Norris, 320 F.3d 844, 847

(8th Cir. 2003) (citing Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir.1996)). Plaintiff’s

allegations in the complaint that he has various liberty interests created by the terms of MDOC

Policy and infringed by defendants Horn’s3 and Griffin’s alleged violations of the MDOC Policy

therefore fail to allege a constitutional claim. See Sandin v. Conner, 515 U.S. 472, 482 (1995)

(noting that state prison regulations are “not designed to confer rights on inmates”).

Under Sandin, due process if not implicated unless an inmate is subject to punishment

which would be considered atypical, or unless the punishment will inevitably affect the duration

of a prisoner’s sentence. Therefore, a prisoner can only bring a procedural due process claim if

the punishment which the prisoner received as a result of the alleged denial of his due process

rights: (1) “imposes atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life,” id. at 484, or (2) affected the duration of the prisoner’s sentence, e.g.,

parole time, or good time credits. If the punishment meets either of these criteria, a court must

analyze whether there has been a deprivation of procedural due process under Wolff v.

McDonnell, 418 U.S. 539 (1974). In this case, violation of a MDOC Policy does not create a

liberty interest. Cf. Thompson v. Souza, 111 F.3d at 700 (prisoner plaintiff did not claim that

violation of a prison strip search regulation “creates a liberty interest, nor could he make such a

claim,” citing Sandin).

None of the punishments plaintiff alleges he received as a result of the alleged denial of

due process did not impose atypical or significant hardships on him in relation to the ordinary

incidents of prison life. Plaintiff alleges he was denied visitation, recreation rights, he was

transferred, and was placed in administrative segregation. None of these punishments constitute

an atypical or significant hardship in relation to ordinary prison life. See, e.g., Phillips, 320 F.3d

at 847 (denial of exercise for 37 days was not an atypical and significant hardship); Portley-El v.

3Similarly, plaintiff’s individual capacity claim against defendant Horn must be dismissed because the allegation

that he ruled against plaintiff in his adjustment board hearing and his Administrative Segregation Hearing does not

state a claim. The punishments plaintiff alleges he received as a result of the alleged denial of due process did not

impose atypical or significant hardships on him in relation to the ordinary incidents of prison life.

Brill, 288 F.3d 1063, 1065 (8th Cir. 2002) (“We have consistently held that administrative and

disciplinary segregation are not atypical and significant hardships under Sandin.”); Ware v.

Morrison, 276 F.3d 385, 387 (8th Cir. 2002) (loss of visitation not atypical or significant); ”);

Kennedy v. Blankenship, 100 F.3d 640, 642 (8th Cir. 1996) (placement in punitive isolation was

not atypical and significant deprivation even though prisoner faced restrictions in mail,

telephone, visitation, commissary, and personal-possession privileges).

D. Plaintiff’s Equal Protection Claim against Defendant Griffin

Plaintiff’s equal protection claim must also be dismissed for failure to state a claim.

Plaintiff has failed to plead an equal protection violation against defendant Griffin. The equal

protection clause “prohibits government officials from selectively applying the law in a

discriminatory way.” Central Airlines, Inc. v. United States, 138 F.3d 333, 334-35 (8th Cir.1998)

(citation omitted). “It protects ‘fundamental rights,’ ‘suspect classifications,’ and ‘arbitrary and

irrational state action.’” Brandt v. Davis, 191 F.3d 887, 893 (8th Cir.1999). Plaintiff has not

asserted that he belongs to a suspect class. Moreover, as shown above, there is no indication that

plaintiff has a fundamental right at stake, as he has not shown that he was deprived of a liberty

interest. And the Eighth Circuit has held that prisoners are not a protected class. Murray v.

Dosal, 150 F.3d 814, 818 (8th Cir. 1998).

Simply put, plaintiff’s allegations of an equal protection violation are conclusory. He

asserts only that he was in a shared cell at the time the purported drugs were found, and therefore

his cellmate should have also been charged with possession of the purported K-2. However,

plaintiff’s own allegations in his complaint set forth that the purported K-2 was found at “his

feet.”

Thus, plaintiff’s allegations that he somehow had his equal protection rights violated by

being written up by defendant Griffin when his cellmate was not is insufficient to state a claim

for relief. See Hamilton v. Palm, 621 F.3d 816, 817-18 (8th Cir. 2010) (explaining that to state a

cause of action, a “pleading that merely pleads labels and conclusions, or a formulaic recitation

of the elements of a cause of action, or naked assertions devoid of factual enhancement will not

suffice”). Accordingly, plaintiff’s claim for an equal protection violation against defendant

Griffin pursuant to § 1983 must be dismissed.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motions for leave to proceed in forma

pauperis [Doc. #2 and #5] are GRANTED.

IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $31.75

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 this action is DISMISSED pursuant to 28 U.S.C.

§ 1915(e)(2)(B).

IT IS FURTHER ORDERED that an appeal of this dismissal would not be taken in

good faith.

An Order of Dismissal will accompany this Memorandum and Order.

Dated this 28th day of August, 2019.

/s/ Jean C. Hamilton

JEAN C. HAMILTON

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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