George Brown, Jr. v. Gary Kempker , 55 F. App'x 388 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2785
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George Brown, Jr., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Gary Kempker, *
* [UNPUBLISHED]
Appellee. *
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Submitted: November 4, 2002
Filed: December 24, 2002
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Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and MELLOY, Circuit
Judges.
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PER CURIAM.
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).
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.
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).
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).
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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