# Herron v. Missouri Probation and Parole

> District Court, E.D. Missouri · December 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10236258

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** December 21, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10236258

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DAMIAN R. HERRON, )
)
Plaintiff, )
)
v. ) No. 4:21-CV-00526
)
MISSOURI BOARD OF )
PROBATION AND PAROLE, )
)
Defendant. MEMORANDU)M AND ORDER

Before the Court is pro se Plaintiff Damian Herron’s Motion for Leave to Proceed in
Forma Pauperis. Doc. [5]. Having reviewed the Motion and the financial information
submitted in support, Doc. [6], the Court grants the Motion and assesses an initial partial
filing fee of $1.75. Additionally, for the reasons set forth below, the Court dismisses the
Amended Complaint pursuant to 2288 U U.S..SC.C. §. §1 191951(5e()B()2()1(B)).
in forma pauperis

A prisoner bringing a civil action is required to pay the full amount
of the filing fee. 28 U.S.C. § 1915(b)(1). If the prisoner lacks 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.
28 U.S.C. § 1915(b)(1)(A)-(B). 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 his account. 28 U.S.C. § 1915(b)(2). Until the filing fee is paid, the agency having custody
Id.
of the prisoner will forward these monthly payments to the Clerk of Court each time the
amount in the account exceeds $10.00.
In support of his Motion, Plaintiff filed a certified inmate account statement showing
an average monthly deposit of $8.75. Doc. [6]. The Court therefore assesses an initial partial
filing fee of $1.75.
LEGAL STANDARD
in forma pauperis

This Court must dismiss a complaint filed if it is frivolous, malicious,
Neitzke v. Williams
or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2). An action
is frivolous if it “lacks an arguable basis in either law or fact.” , 490 U.S.
Bell Atl. Corp. v.
319, 328 (1989). An action fails to state a claim upon which relief may be granted if it does
Twombly
not plead “enough facts to state a claim to relief that is plausible on its face.”
, 550 U.S. 544, 570 (2007).
A claim is facially plausible when the plaintiff “pleads factual content that allows the
Ashcroft v. Iqbal
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” , 556 U.S. 662, 678 (2009). Determining whether a complaint states
Id
a plausible claim for relief is a context-specific task requiring the court to use judicial
experience and common sense. . at 679. The court assumes the veracity of well-pled facts
Id. Twombly,
but need not accept as true “[t]hreadbare recitals of the elements of a cause of action,
Estelle v. Gamble
supported by mere conclusory statements.” at 678 (citing 550 U.S. at 555).
The Court must liberally construe complaints filed by laypeople. ,
429 U.S. 97, 106 (1976). Thus, “if the essence of an allegation is discernible,” the court should
Solomon v. Petray
“construe the complaint in a way that permits the layperson’s claim to be considered within
Stone v. Harry pro se
the proper legal framework.” , 795 F.3d 777, 787 (8th Cir. 2015) (quoting
Martin v. Aubuchon
, 364 F.3d 912, 914 (8th Cir. 2004)). Still, even complaints must allege
facts that, if true, state a claim for relief as a matter of law. , 623 F.2d
Stone
1282, 1286 (8th Cir. 1980). Federal courts are not required to assume facts that are not
See McNeil v. United States,
alleged, , 364 F.3d at 914-15, and need not interpret procedural rules to excuse
Brown v. Frey
mistakes by persons proceeding without counsel. 508 U.S. 106,
113 (1993); , 806 F.2d 801, 804 (8th Cir. 1986) (self-represented litigants are
not excused from following substantive and procedural law).
Reynolds v.
In assessing whether an action is subject to dismissal under 28 U.S.C. § 1915(e)(2)(B),
Dormire
courts may consider materials that are attached to the complaint as exhibits.
, 636 F.3d 976, 979 (8th Cir. 2011) (citations omitted); Fed. R. Civ. P. 10(c) (“A copy
of a written instrument that is an exhibit to a pleading is a part of the pleading for all
purposes.”).
BACKGROUND

On May 3, 2021, Plaintiff filed a handwritten one-page Complaint in which he alleged
a claim under 42 U.S.C. § 1983 against the Missouri Board of Probation and Parole. Doc. [1].
On June 29, 2021, the Court ordered Plaintiff to amend his pleading, as it was not filed on the
in forma pauperis
required Court-provided form. Doc. [3]. That same day, the Court ordered that Plaintiff file
both a separate motion to proceed and a prison account statement, or pay
in forma pauperis,
the full $400.00 filing fee. On July 14, 2021, Plaintiff filed an Amended Complaint, a motion
to proceed and a prison account statement. Docs. [4], [5], and [6].
In the Amended Complaint, Plaintiff alleges the following:
th
From the date of November 6 2019 to March of 2020, I was falsely charged
$30 for each month in intervention fees even though I was incarcerated in
Stoddard County Jail, and MO Probation & Parole had recommended delayed
action in regards to my case. I did not suffer any physical injuries. MO
Probation and Parole wrongfully charged me with intervention fees during the
th
time period of November 6 , 2019 – March, 2020. Not only was I incarcerated
at the time, but I was also on delayed action in reference to my probation. Doc.
[4] at 3-4.

Plaintiff seeks what he owes “on [his] account in intervention fees,” as well as $100,000 in
damages. Doc. [4] at 5.
The Missouri Board of Probation and Parole is a division of the Missouri Department
of Corrections. MO. REV. STAT. § 217.015. Under Missouri’s parole statute, “[t]he division of
probation and parole has discretionary authority to require the payment of a fee, not to
Id.
exceed sixty dollars per month, from every offender placed under division supervision on
probation, parole, or conditional release,” and to “waive all or part of any fee.”
§ 217.690.3. Missouri’s Code of State Regulations establishes the procedure for collecting
See
“intervention fees” and outlines the terms for a waiver making a person exempt from
payment of the fee. Mo. Code Regs. Ann. Title 14, § 80-5.020. Among other exceptions,
the regulations allow a person to obtain an intervention fee waiver if he has insufficient
income. Mo. Code Regs. Ann. Title 14, § 8D0I-S5C.U0S2S0IO(1N) (H).
Monell v. Dept. of
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which was designed to
Soc. Servs.
, 436 U.S. 658, 685 (1978). Section 1983 provides only a remedy for violations of
see also Albright v. Oliver
all “rights, privileges, or immunities secured by the Constitution and laws [of the United
States].” 42 U.S.C. § 1983; , 510 U.S. 266, 271 (1994) (“[§ 1983]
merely provides a method for vindicating federal rights elsewhere conferred”). To state a
claim under 42 U.S.C. § 1983, a plaintiff must establish: (1) the violation of a right secured by
West v. Atkins
the Constitution or laws of the United States, and (2) that the alleged deprivation of that right
was committed by a person acting under color of state law. , 487 U.S. 42, 48
(1988).
Plaintiff does not specifically claim that Defendant violated his right to due process;
1
nor does he allege that he was deprived of a property interest through inadequate state
procedures. To the extent Plaintiff intends to claim that Defendant violated his right to
procedural due process by denying him a pre- or post-deprivation proceeding, the Amended
Jackson v. Chairman & Members of Mo. Bd. of Prob. & Parole
Complaint fails to state a claim.
In , this Court considered
aff’d,
whether the imposition of parole intervention fees without pre-deprivation proceedings
Jackson v. Chairman & Members of Mo. Bd. of Prob. & Parole
violated a parolee’s right to due process. 2010 WL 5070722 (E.D. Mo. Dec. 7, 2010),
, No. 11-1054 (8th Cir. 2011). The
Court recognized that while the parolee had an interest in avoiding an erroneous fee
assessment, if he believed he was exempt from the fees he could either speak to his parole
Jackson
officer or request a waiver pursuant to Missouri Code of State Regulations Title 14, § 80-
5.020(1)(H). , 2010 WL 5070722, at *6. The Court also determined that the risk of
erroneous deprivation was low, that Missouri had an interest in reimbursement for services
provided, and that a pre-deprivation hearing for each person would be onerous and
Id
unnecessary, as the terms for waiver were outlined in Missouri’s Code of State Regulations.
Jackson
.
The same result is proper here. As in , Plaintiff may seek a waiver under
Missouri’s Code of State Regulations. The same state concerns and low risk of erroneous

See Bd. of Regents of State
C1olleges v. Roth
Plaintiff has a propseeer tayl sion tTearyelsotr i nv. tSheeb emliuosney in his inmate account.
, 408 U.S. 564, 571–72 (1972) (acknowledging real estate, chattels, and money as basic
Jackson
deprivation recognized in are present here. While Plaintiff asserts that Defendant
reached an erroneous result, such error does not rise to a procedural due process violation.
See Carey v. Piphus, Pietsch
The right to procedural due process neither depends on the merits of a person’s claims, nor
v. Ward Cnty.
guarantees a correct result every time. 435 U.S. 247, 266 (1978);
, 446 F. Supp. 3d 513, 538 (D.N.D. 2020). It is concerned only with the adequacy
of process. Here, plaintiff alleges nothing permitting the inference that he was subjected to
an unfair process.
Even if Plaintiff’s Amended Complaint stated a claim under the due process clause, his
th
claim would be barred by the 11 Amendment. Plaintiff named as sole defendant the
Missouri Board of Probation and Parole. Doc. [4]. Because the Missouri Board of Probation
Jackson v. Mo. Bd. of Prob. & Parole
and Parole is an “instrumentality” of the State of Missouri, it is entitled to sovereign immunity
th
in federal court under the 11 Amendment. , 306 Fed.
App’x 333 (8th Cir. 2009) (upholding the district court’s dismissal of suit against the
th
Missouri Board of Probation and Parole on 11 Amendment grounds).
After reviewing and liberally construing the Amended Complaint, the Court concludes
it must be dismissed. It is apparent that allowing Plaintiff to file a second amended complaint
th
would be futile, as adding new defendants not shielded by 11 Amendment immunity would
not cure the claim’s inherent defects.
AITc cIoSr HdiEnRgElyB, Y ORDERED
GRANTED that Plaintiff’s Motion to Proceed in Forma Pauperis, Doc.
[5], is IT IS FUR.T HER ORDERED
that Plaintiff must pay an initial filing fee of $1.75 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) this case number; and (4) the statement that the remittance
i s for anIT o rIiSg iFnUalR pTrHocEeRe dOinRgD. ERED DISMISSED
that the Amended Complaint, Doc. [4], is
withouItT p rIeSj uHdEiRceE. B AY s CeEpaRrTaItFeI oErDder of dismissal will be entered herewith.
that an appeal from this dismissal would not be taken in
good faith.
Dated this 21st day of December, 2021.
Aids (Hish
SARAH E. PITLYK
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10236258. Public record. Not legal advice.