Conner v. Missouri Department of Corrections

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CORNELIUS CONNER, )

)

Plaintiff, )

)

v. ) No. 4:22-cv-01108-ACL

)

MISSOURI DEPARTMENT OF )

CORRECTIONS, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Before the Court is the application of self-represented plaintiff Cornelius Conner to

proceed in the district court without prepaying fees or costs. For the reasons stated below, the Court

finds that plaintiff does not have sufficient funds to pay the entire filing fee and will grant the

motion. Furthermore, based upon an initial review, the Court will dismiss plaintiff’s complaint for

failure to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B).

Initial Partial Filing Fee

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 a ledger from the Missouri Department of Corrections from June

11, 2022 to October 14, 2022. Having reviewed this ledger, the Court finds plaintiff does not have

the money to pay the full amount of the filing fee and will assess an initial partial filing fee of

$1.00. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (explaining that when a prisoner

is unable to provide the court with a certified copy of his inmate account statement, the court

should assess an amount “that is reasonable, based on whatever information the court has about

the prisoner’s finances”).

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 fails to state a claim upon which relief can be granted. To state a claim under 42

U.S.C. § 1983, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere

possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “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 draw upon judicial experience and common sense. Id. at 679.

When reviewing a pro se complaint under 28 U.S.C. § 1915(e)(2), the Court must give it

the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal

construction” means that if the essence of an allegation is discernible, the district court should

construe the plaintiff’s complaint in a way that permits his or her claim to be considered within

the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even

pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of

law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980).

The Complaint

Plaintiff is a self-represented litigant currently incarcerated at the Eastern Reception,

Diagnostic and Correctional Center (“ERDCC”) in Bonne Terre, Missouri. He brings this civil

action pursuant to 42 U.S.C. § 1983, naming as defendants the Missouri Department of Corrections

and the ERDCC.

“The Plaintiff complains of the fact that the Defendant’s prison guard namely COI Dalton

failed to comply with the Standard Operating Procedure and or policy for its correctional facility

by failing to complete the property inventory sheet/form and have it signed and dated by the

Plaintiff.” “The Plaintiff complains of the fact that he was denied his mail on the 7th day of October

2022 and still to this 16th day of October 2022 the Plaintiff has yet to receive his mail.”

In response to the denial of his mail, plaintiff states that he mailed a kite through in-house

mail on October 13, 2022 to the functional unit manager requesting an informal resolution request

(IRR), which is the first step in the prison’s grievance process. He states that as of the drafting of

his complaint on October 16, 2022 he has not yet received his IRR form. He is suing defendants

for alleged constitutional violations arising out of his claim that he has been denied the right to file

a grievance. He also seeks to sue under the federal mail tampering statute.

For relief, plaintiff seeks $150,000 in damages for the alleged denial his First, Eighth, and

Fourteenth Amendment rights and an additional $500,000 for violation of the federal criminal

statute 18 U.S.C. § 242, right to receive mail.

Discussion

Because plaintiff is proceeding in forma pauperis, the Court reviewed his complaint under

28 U.S.C. § 1915. Based on that review, and for the reasons discussed below, the Court has

determined that plaintiff’s complaint is deficient and subject to dismissal.

Plaintiff’s claims against the Missouri Department of Corrections and ERDCC must be

dismissed because these entities are not considered “persons” for purposes of § 1983. “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). Furthermore, an agency exercising state power is also not a

person subject to suit under § 1983. See Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy

Corp., 948 F.2d 1084, 1086 (8th Cir. 1991). Moreover, the Eleventh Amendment bars suit against

a state or its agencies for any kind of relief, not merely monetary damages. Monroe v. Arkansas

State Univ., 495 F.3d 591, 594 (8th Cir. 2007).

Even if plaintiff were to have sued the proper defendant, his complaint is still subject to

dismissal. Inmates do not have a constitutional liberty interest in the procedures by which the state

believes it can best determine their confinement. Kennedy v. Blankenship, 100 F.3d 640, 643 (8th

Cir. 1996). “[T]here is no constitutional liberty interest in having state officers follow state law or

prison officials follow prison regulations.” Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003);

see also Jenner v. Nikolas, 828 F.3d 713, 716-17 (8th Cir. 2016) (explaining that “[t]he existence

of a state-mandated procedural requirement does not, in and of itself, create a constitutionally

protected liberty interest”). A prison grievance procedure is a procedural right only and does not

confer upon an inmate a substantive right. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993);

see also Lomholt v. Holder, 287 F.3d 683, 684 (8th Cir. 2002) (agreeing with district court that

“defendants’ denial of [plaintiff’s] grievances did not state a substantive constitutional claim”).

Plaintiff does not have a constitutional liberty interest in receiving an inventory property sheet or

an internal resolution request form. Therefore, he cannot state a violation of his constitutional

rights under § 1983 arising out of the denial of these forms.

Finally, plaintiff seeks to sue defendants for violation of the federal mail tampering statute,

18 U.S.C. § 242. The federal mail tampering statute is a criminal statute that does not provide a

private right of action. The criminal statute provides for prosecution by the United States not by

its individual citizens. See U.S. v. Wadena, 152 F.3d 831, 846 (8th Cir. 1998) (“Courts have

repeatedly held that there is no private right of action under [18 U.S.C.] § 241, even though the

statute allows federal authorities to pursue criminal charges”); Cok v. Cosentino, 876 F.2d 1, 2 (1st

Cir. 1989) (stating that only a United States prosecutor can bring a complaint under 18 U.S.C. §§

241-242, and that the “statutes do not give rise to a civil action for damages”); Brown v. Express

Scripts, 2018 WL 1295482, at *2 (E.D. Mo. 2018) (dismissing plaintiff’s claim brought under 18

U.S.C. § 242 because plaintiff had no private right of action).

For the foregoing reasons, the Court will dismiss plaintiff’s complaint against defendants

Missouri Department of Corrections and ERDCC for failure to state a claim upon which relief may

be granted. 28 U.S.C. § 1915(e)(2)(B).

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motions to proceed in forma pauperis are

GRANTED. [ECF Nos. 2 and 4]

IT IS FURTHER ORDERED that plaintiff must pay an initial partial filing fee of $1.00

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) the statement that the remittance is for an original

proceeding.

IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel is

DENIED as moot. [ECF No. 5]

IT IS FURTHER ORDERED that plaintiff's claims against defendants the Missouri

Department of Corrections and the Eastern Reception, Diagnostic and Correctional Center are

DISMISSED without prejudice.

An separate Order of Dismissal will accompany this Memorandum and Order.

Dated this 5" day of January, 2023.

f Gite Ey Jee ak J.

STEPHEN N. LIMBAUGH, JR.

SENIOR UNITED STATES DISTRICT JUDGE