Amos v. Stolzer

ATARI J. AMOS, Plaintiff, v. UNKNOWN STOLZER, et al., Defendants.

No. 1:14CV63 SNLJ

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION

November 18, 2014

MEMORANDUM AND ORDER

This matter is before the Court upon the motion of plaintiff Atari J. Amos (registration no.1130712), an inmate at Northeast Correctional Center ("NECC"), for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that the plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $1.00 at this time. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will partially dismiss the complaint and will order the Clerk to issue process or cause process to be issued on the non-frivolous portions of the complaint.

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 thesemonthly 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 $0, and an average monthly balance of $0. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $1.00, which is a nominal initial partial filing fee.

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); Denton v. Hernandez, 504 U.S. 25, 31 (1992). 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).

To determine whether an action fails to state a claim upon which relief can be granted, the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These include "legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements." Id. at 1949. Second, the Court must determine whether the complaint states a plausible claim for relief. Id. at 1950-51.This is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. The plaintiff is required to plead facts that show more than the "mere possibility of misconduct." Id. The Court must review the factual allegations in the complaint "to determine if they plausibly suggest an entitlement to relief." Id. at 1951. When faced with alternative explanations for the alleged misconduct, the Court may exercise its judgment in determining whether plaintiff's conclusion is the most plausible or whether it is more likely that no misconduct occurred. Id. at 1950, 51-52.

The Complaint

Plaintiff, an inmate at NECC, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights which allegedly occurred during his incarceration at the St. Genevieve County Jail.

Plaintiff seeks both monetary and injunctive relief in his complaint, and he has named defendants in both their individual and official capacities. Named as defendants are: Unknown Stolzer (Sheriff, St. Genevieve County); David Owens (Communications Director, Missouri Dept. of Corrections ("MDOC")), John Doe (Director, MDOC); Unknown Odem (Nurse, St. Genevieve County Jail); Unknown Catel (Doctor, St. Genevieve County Jail); D. Gegg (Correctional Officer, St. Genevieve County Jail); Keefe Group; R. Merz (Correctional Officer, St. Genevieve County Jail); A. Hulsey (Correctional Officer, St. Genevieve County Jail); Unknown Conrad (Correctional Officer, St. Genevieve County Jail); N. Burns (Correctional Officer, St. Genevieve County Jail); P. Kard (Sergeant, St. Genevieve County Jail); Unknown Miller (Correctional Officer, St. Genevieve County Jail); Unknown Mayfield (Correctional Officer, St. Genevieve County Jail); Unknown Del Rosario (Correctional Officer, St. Genevieve County Jail); Unknown McCaffrey (Correctional Officer, St. Genevieve County Jail); B. Berg (Correctional Officer, St. Genevieve County Jail); C. Schlenker (Correctional Officer, St.Genevieve County Jail); St. Genevieve County Sheriff's Dept.; Unknown Van Haar (Correctional Officer, St. Genevieve County Jail); N. Ems (Correctional Officer, St. Genevieve County Jail); S. Memhardt (Correctional Officer, St. Genevieve County Jail); C. Weinhold (Correctional Officer, St. Genevieve County Jail); A. Brown (Correctional Officer, St. Genevieve County Jail); and K. Carrow (Correctional Officer, St. Genevieve County Jail).

Plaintiff first claims that defendants have refused to provide him with a halal food program, a "hardback" Qur'an, a "prayer rug" and access to religious services with an Imam, in violation of his First Amendment right to Free Exercise of Religion and in violation of his statutory rights under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc-1 et seq.¹ Plaintiff also claims that his rights under the Establishment Clause have been violated because other religions have an authorized clergy member on the "Authorized Clergy List," but not Muslims.

Specifically, plaintiff states that he asked defendant Kard for the aforementioned "religious accommodations," in addition to requesting an alarm clock, in order to adhere to a proper diet and prayer times for his Muslim religion. Plaintiff asserts that defendant Kard denied the request, as well as his subsequent grievance. Plaintiff also states, in a conclusory manner, that "all the defendant officers denied the request," but he never claims that the request for "religious accommodations" were made to any specific additionally named defendants.

Plaintiff asserts that the Jail has a "policy and custom" of "refusing to provide inmates with newspapers, magazines and books." However, in the next sentence of his complaint, plaintiff asserts that inmates are limited to possession of three books or magazines at any onetime. Plaintiff states that the Jail has another "policy or custom" of throwing "envelopes" from an inmates' mail away.

Plaintiff states in a conclusory manner that defendant Stolzer has a "policy and custom" of "denying contact visits to inmates and their families." However, he claims in his next sentence of his complaint that his visits with his family have been limited to ten (10) minutes at a time. Thus, it seems clear that plaintiff has been receiving visits from friends and family members.

Plaintiff complains that the Jail has a "policy and custom" of "denying inmates legal assistance . . .by refusing to install an electronic library similar to the one used in the Federal Bureau of Prisons." He also complains that the Jail refuses to provide him postage stamps and envelopes and paper free of charge. He further states that the Jail has a "policy and custom" of failing to provide "nutritious meals."

Plaintiff also alleges that the food is often cold or not cooked to the specifications he believes it should be held to, and he states, in a conclusory manner, that the Jail doesn't provide "adequate clothing" to the inmates. ² Plaintiff additionally complains that although inmates are given a "hygiene bag" when they enter the Jail, after they use the soap, shampoo, toothbrush and toothpaste in the bag, they have to buy their additional hygiene items from the commissary, if they have funds to do so. Plaintiff believes the Jail should have to provide hygiene items free of charge, regardless of their ability to pay.

Plaintiff asserts that the Jail also has "algae and mold" growing in various places on its walls, and he claims that the inmates are asked to wipe down the walls with "watered down detergent." He believes this exposes the inmates to harm, although he has not specific the harmto which he refers. Plaintiff additionally complains, in a conclusory manner, about the faulty ventilation system at the Jail, stating that it is old and isn't kept properly maintained. He asserts, also in a conclusory manner, that the Jail is "overcrowded," and he claims that the "recreation run" offered at the Jail is "small, moldy, hot and devoid of air and sunlight."

Plaintiff additionally asserts that the Jail, in conjunction with "Keefe Group," the Director of MDOC and defendant Owens, "conspired to deprive inmates of the money in their inmate accounts" by "illegally charging...