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Excessive Account Deductions May State First Amendment Claim

The U.S. Eighth Circuit Court of Appeals partly reversed dismissal
of a Missouri prisoner's civil rights complaint alleging that a prison
official was retaliating against him for filing lawsuits by deducting
excessive amounts of money from his prison account.

George Brown, Jr., a prisoner of the Missouri Department of
Corrections (MODOC), sued MODOC Director Gary Kempker under 42 U.S.C.
§1983. Brown claimed that Kempker was deducting all funds from his prison
account each month to pay outstanding debts, contrary to MODOC policy
which requires a prisoner to be left at least $7.50 monthly. Brown claimed
this was cruel and unusual punishment in violation of the Eighth
Amendment, denial of equal protection, in violation of the Fourteenth
Amendment, and done in retaliation for Brown's filing lawsuits in
violation of the First Amendment. The district court dismissed all claims
prior to service as failing to state a claim and certified that an appeal
could not be taken in good faith. Brown appealed anyway.

The appeals court denied as moot Brown's motion for in forma
pauperis status because the district court permitted Brown to pay his
filing fee in installments despite certifying no good faith basis for an
appeal. The appeals court held that the equal protection claim was
properly dismissed because Brown failed to allege that he belonged to a
suspect class or that any similarly situated prisoner was treated
differently. The Eighth Amendment claim was also properly dismissed
because, although Brown alleged he was unable to purchase "necessities,"
he failed to allege that he had requested prison officials to provide
those necessities and was denied. The appeals court, however, found that
Brown "sufficiently stated a retaliation claim," for which reversal was

The district court's decision was affirmed in part, reversed in
part and remanded for service of process and for further proceedings. This
is not a ruling on the merits of the claim. This case is published in the
Federal Appendix and is subject to rules governing unpublished cases. See:
Brown v. Kempker, 55 Fed.Appx. 388 (8th Cir. 2002).

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Related legal case

Brown v. Kempker

[U] Brown v. Kempker, 55 Fed.Appx. 388 (8th Cir. 12/24/2002)


[2] No. 02-2785

[3] 55 Fed.Appx. 388, 2002

[4] December 24, 2002


[6] Appeal from the United States District Court for the Western District of Missouri.

[7] Before Wollman, Morris Sheppard Arnold, and Melloy, Circuit Judges.

[8] The opinion of the court was delivered by: Per Curiam


[10] Submitted: November 4, 2002

[11] Missouri inmate George Brown, Jr., appeals the district court's pre-service dismissal of his 42 U.S.C. § 1983 lawsuit. Mr. Brown also moves for in forma pauperis (IFP) status on appeal. The district court found that Mr. Brown's appeal was not taken in good faith but ordered deductions from his prisoner account to pay the appellate filing fee in installments; thus, we deny Mr. Brown's motion as moot. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997) (per curiam) (Fed. R. App. P. 24(a)(5) motion to proceed IFP on appeal triggers appellant's responsibility to pay full appellate filing fee by installment method).

[12] Mr. Brown alleged that Gary Kempker, Director of the Missouri Department of Corrections (MDOC), was deducting from his institutional offender account all of his monthly income for outstanding state debts and, contrary to MDOC policy, was not leaving him a balance of at least $7.50. He claimed that this practice was cruel and unusual punishment, that it violated the Equal Protection Clause, and that the deductions were being made in retaliation for his filing lawsuits.

[13] Having carefully reviewed the record, we conclude dismissal of Mr. Brown's equal protection and Eighth Amendment claims was proper. Mr. Brown did not allege that he belongs to a suspect class, or that any other inmate owed as much in state court costs (for which prisoner account deductions were authorized). Thus, he failed to state an equal protection claim. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (to proceed with equal protection claim, plaintiff who is not member of suspect class must allege that he "has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment"). Mr. Brown also failed to state an Eighth Amendment claim: although he asserted that he was unable to purchase "necessities," he did not allege that prison officials had denied any request from him for those necessities. Cf. Scott v. Carpenter, 24 Fed. App. 645, 648 (8th Cir. 2001) (unpublished per curiam) (prisoners can be expected to bear some responsibility for their own hygiene, and officials did not deprive disabled prisoner of his basic needs where he rarely requested showers or warm water for sponge baths).

[14] We believe that Mr. Brown sufficiently stated a retaliation claim, however, and that this claim warrants remand for service of process. Accordingly, we affirm in part and remand for further proceedings on the retaliation claim. See 8th Cir. R. 47A(a).