Opinion
No. 2:06-CV-2-AGF.
March 3, 2006
ORDER AND MEMORANDUM
This matter is before the Court upon the application of Gregory Wilbon (registration no. 185313) for leave to commence this action without payment of the required filing fee.
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. See 28 U.S.C. § 1915(b)(1). 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. See 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 an affidavit and a certified copy of his prison account statement for the six-month period immediately preceding the submission of his complaint on January 13, 2006.See 28 U.S.C. § 1915(a)(1), (2). A review of plaintiff's account statement indicates an average monthly deposit of $72.59, and an average monthly account balance of $24.70. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $14.52, which is 20 percent of plaintiff's average monthly deposit.
28 U.S.C. § 1915(e)Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed in forma pauperis at any time if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. An action is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief may be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Jackson Sawmill Co. v. United States, 580 F.2d 302, 306 (8th Cir. 1978).
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 112 S. Ct. 1728, 1733 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The complaint
Plaintiff, an inmate at the Northeast Correctional Center, seeks monetary relief in this 42 U.S.C. § 1983 action against Jim Moore, Unknown Kieffer, Unknown Webb, Unknown Billings, and "Unknown FUM Manager."Plaintiff's claims that defendants Jim Moore, Unknown Kieffer, Unknown Webb, and Unknown Billings violated his constitutional rights survive review under § 1915(e)(2)(B) and should not be dismissed at this time. See 28 U.S.C. § 1915A; 42 U.S.C. § 1997e(g)(2). Therefore, the Court will order that defendants Jim Moore, Unknown Kieffer, Unknown Webb, and Unknown Billings reply to the complaint.
The complaint is legally frivolous as to defendant "Unknown FUM Manager," because plaintiff has failed to assert any allegations against this individual. Moreover, an action may proceed against a party whose name is unknown only if the allegations are sufficiently specific to permit the party's identity to be ascertained after reasonable discovery. Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985). In the case at hand, the complaint does not contain specific allegations regarding the identity of the FUM Manager. Cf. Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995) (suit naming "various other John Does to be named when identified" not permissible).
Last, plaintiff's claim that he was issued a false and defamatory conduct violation is legally frivolous. "A plaintiff can successfully invoke § 1983 only when his federal statutory or constitutional rights have been violated. Invasion of an interest in reputation alone is insufficient to establish § 1983 liability because a damaged reputation, apart from injury to a more tangible interest such as loss of employment, does not implicate any `liberty' or `property' rights sufficient to invoke due process." Geter v. Fortenberry, 849 F.2d 1550, 1556 (5th Cir. 1988);Paul v. Davis, 424 U.S. 693 (1976). In addition to his reputation, plaintiff does not allege a colorable violation of a "more tangible" interest related to the defamation that could amount to a constitutional deprivation.
Moreover, plaintiff's allegation that he "was given 10 days in the hole" does not implicate constitutionally-protected interests, because it do not concern an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472 (1995). Similarly, the allegations in the complaint do not indicate that plaintiff has suffered the type of atypical and significant hardship in which the state might conceivably create a liberty interest. As such, defendant "Unknown FUM Manager," as well as plaintiff's claim that he was issued a false and defamatory conduct violation, will be dismissed, without prejudice.
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #1] is GRANTED. IT IS FURTHER ORDERED that plaintiff shall pay an initial partial filing fee of $14.52 within thirty (30) days from 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 the Clerk shall not issue process or cause process to issue upon the complaint as to "Unknown FUM Manager," because, regarding this defendant, the complaint is legally frivolous and fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiff's claim that he was issued a false and defamatory conduct violation is DISMISSED, without prejudice.
IT IS FURTHER ORDERED that, as to defendants Jim Moore, Unknown Kieffer, Unknown Webb, and Unknown Billings, the Clerk shall issue process or cause process to issue upon the complaint.
IT IS FURTHER ORDERED that pursuant to 42 U.S.C. § 1997e(g)(2), defendants Jim Moore, Unknown Kieffer, Unknown Webb, and Unknown Billings, shall reply to the complaint within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that, pursuant to this Court's differentiated case management system, this case is assigned to Track 5B (standard prisoner actions).
An appropriate order shall accompany this order and memorandum.