explaining that “[t]his court has consistently held that the current Missouri statutes, standing alone, do not create a liberty interest protected by the due process clause of the Fourteenth Amendment”
How later courts described this case
- explaining that “[t]his court has consistently held that the current Missouri statutes, standing alone, do not create a liberty interest protected by the due process clause of the Fourteenth Amendment”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
MITCHELL MOORE, JR., )
)
Plaintiff, )
)
v. ) No. 1:24-CV-00064 SPM
)
DONALD E. PHILLIPS, et al., )
)
Defendants. )
OPINION, MEMORANDUM AND ORDER
This matter is before the Court upon the motion of self-represented plaintiff Mitchell
Moore, Jr. (registration no. 519368), an inmate at Western Reception Diagnostic and Correctional
Center (WERDCC), for leave to commence this civil action without payment of the required filing
fee. [ECF No. 3]. While incarcerated, plaintiff has brought at least three civil actions in federal
court that were dismissed as frivolous, malicious, or for failure to state a claim. Accordingly, for
the reasons discussed below, the Court will deny plaintiff’s motion for leave to proceed in forma
pauperis and dismiss plaintiff’s complaint without prejudice.
The Complaint
On March 26, 2024, self-represented plaintiff Mitchell Moore, Jr. filed the instant action
on a Prisoner Civil Rights Complaint form pursuant to 42 U.S.C. § 1983. [ECF No. 1]. Plaintiff
brings his claims against Governor Michael Parson, Missouri Board of Probation and Parole
(MBPP) Donald Phillips, Board Operations Manager Steven Mueller and Board Analyst Brian
George. Plaintiff sues defendants in both their official and individual capacities.
Plaintiff asserts that on or about June 28, 2022, he met with MBPP analyst Brian George
“after being found guilty” of a conduct violation for assault. Plaintiff claims that George asked
him at that time if he could go at least thirty (30) days without receiving a violation. When
questioned, plaintiff indicated, “yes,” but he also admitted that he “mostly” refused his mental
health medications. Plaintiff complained that he had sought to be placed in a mental health setting
but had been denied by the Institutional Chief of Mental Health Services at the Missouri
Department of Corrections.
Plaintiff states that the June 28, 2022, hearing with George resulted in an extension in his
conditional release date from his prior conditional release date of August 1, 2023, to November 1,
2023. Plaintiff states in his complaint that he understands that his “maximum release date” is
August 1, 2026. Nevertheless, he complains that the MBPP defendants appear to be holding his
mental health difficulties against him because it is his belief that he keeps accruing disciplinary
sanctions as a result of his mental health issues.1
For example, plaintiff claims that he received two minor conduct violations for holding his
food port while he was in general population. However, plaintiff states that at the time, he was
feeling “paranoid” and suicidal.” Plaintiff also states that he will refuse to take his mental health
medications while he is housed in general population because some offenders in general population
make fun of offenders who take psychiatric medications.
For relief, plaintiff seeks monetary and injunction relief. Plaintiff also seeks an injunction
ordering his release from the Missouri Department of Corrections.2
1Plaintiff fails to make any specific allegations against the additional defendants in this lawsuit.
2Plaintiff attached to his complaint a motion for injunction seeking a mandatory injunction from this Court
ordering the MBPP to release him despite any conduct violations accrued by him. Plaintiff was provided a
letter from the MBPP on January 29, 2024, stating that his “conditional release date must follow at least
one year free of any conduct violations.”
Discussion
Plaintiff seeks leave to commence this § 1983 action without prepayment of the required
filing fee. Plaintiff has had more than three previous cases dismissed on the basis of frivolity or
failure to state a claim. As such, his instant motion to proceed in forma pauperis will be denied
and his case will be dismissed without prejudice to refiling as a fully paid complaint.
A. Three Strikes Rule
The Prison Litigation Reform Act of 1996 (“PLRA”) enacted what is commonly known as
the “three strikes” provision of 28 U.S.C. § 1915(g). Orr v. Clements, 688 F.3d 463, 464 (8th Cir.
2012). Under 28 U.S.C. § 1915(g), a prisoner’s ability to obtain in forma pauperis status is limited
if he has filed at least three actions that have been dismissed as frivolous, malicious, or for failure
to state a claim. Section 1915(g) provides in relevant part:
In no event shall a prisoner bring a civil action . . . under this section if the prisoner
has, on three or more prior occasions, while incarcerated or detained in any facility,
brought an action . . . in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of serious physical
injury.
28 U.S.C. § 1915(g). This section does not apply unless the inmate litigant has three strikes at the
time that he files his lawsuit or appeal. Campbell v. Davenport Police Dep’t, 471 F.3d 952, 952
(8th Cir. 2006). Prisoners who have had three previous civil lawsuits or appeals dismissed as
frivolous, malicious, or for failure to state a claim must prepay the entire filing fee. Lyon v. Krol,
127 F.3d 763, 764 (8th Cir. 1997).
B. Plaintiff’s Previous “Strikes”
Review of this Court’s files reveal that plaintiff, a prisoner, has accumulated more than
three strikes by filing at least three previous cases that were dismissed as frivolous or malicious,
or for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). See Moore v. Feldman, No.
4:18-cv-942-SPM (E.D. Mo. Aug. 6, 2018), Moore v. Williams, et al., No. 4:20-cv-537-RLW
(E.D. Mo. May 15, 2020), and Moore v. Williams, No. 4:20-cv-1416-RLW (E.D. Mo. Feb. 3,
2021).
As a result of plaintiff’s previous filings and dismissals, this Court is unable to permit
plaintiff to proceed in forma pauperis in this matter unless he “is under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g); see also Higgins v. Carpenter, 258 F.3d 797, 800 (8th Cir.
2001). An otherwise ineligible prisoner must be in imminent danger at the time of filing the
complaint; allegations of past imminent danger are insufficient to trigger the exception to
§ 1915(g). Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998).
After carefully reviewing the instant complaint, the Court finds his allegations do not
demonstrate he is in imminent danger of serious physical injury. There is no evidence presented
within the allegations of the complaint that show that plaintiff is in imminent danger of serious
physical injury. Instead, plaintiff merely contests his conditional release date, arguing that the
MBPP unreasonably failed to consider his mental health needs when it changed his conditional
release date. These claims simply do not allege imminent danger.
Furthermore, Missouri’s parole statutes do not create a liberty interest. Marshall v.
Mitchell, 57 F.3d 671, 672 (8th Cir. 1995) (explaining that “[t]his court has consistently held that
the current Missouri statutes, standing alone, do not create a liberty interest protected by the due
process clause of the Fourteenth Amendment”). See also Adams v. Agniel, 405 F.3d 643, 645 (8th
Cir. 2005) (stating that “our court has held that the Missouri parole statutes create no liberty interest
under state law in the parole board’s discretionary decisions”). Thus, plaintiff’s due process claim
against defendants is subject to dismissal.
Plaintiff has thus failed to demonstrate that the exception to the three strikes provision in
§ 1915(g) is applicable to him. Therefore, the Court will deny plaintiff's motion to proceed in
forma pauperis and will dismiss this action without prejudice to plaintiff refiling a fully paid
complaint.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma pauperis
[ECF No. 3] is DENIED.
IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF
No. 5] is DENIED as moot.
IT IS FURTHER ORDERED that plaintiffs request for injunctive relief is DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice to
plaintiff refiling a fully paid complaint. See 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in
good faith.
A separate Order of Dismissal will be entered this same date.
Dated this 24" day of June, 2024.
be bet, Lele
UNITED STATES DISTRICT JUDGE