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Daniel v. Penrod

United States District Court, Eastern District of Missouri, Southeastern Division

March 3, 2015

CATINA DENISE DANIEL, Plaintiff,
v.
BOBBY PENROD, et al., Defendants.

MEMORANDUM AND ORDER

STEPHEN N. LIMBAUGH, JR., UNITED STATES DISTRICT JUDGE

This matter is before the Court upon the motion of plaintiff, Catina Daniel, an inmate at the Scott County Jail, for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $13.33. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that the complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

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 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. A review of plaintiff's account indicates an average monthly deposit of $66.67, and an average monthly balance of $5.30. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $13.33, 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 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 Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The Complaint

Plaintiff, an inmate at the Scott County Jail, brings this action pursuant to 42 U.S.C. § 1983, alleging false arrest and false imprisonment. Named as defendants are: Bobby Penrod (Detective, Sikeston Police Department); David Dolan (Judge); Rick Walter (Scott County Sheriff's Dept.) and; Scott Horman (Judge).

Plaintiff claims that she was arrested when police searched her friend's home, pursuant to a search warrant. Plaintiff asserts that she and her boyfriend were asleep in a bedroom in her friend's home and she was told that she was being arrested pursuant to an outstanding warrant. Plaintiff states that after the search of the home she was charged with possession of a controlled substance and possession with intent to distribute.

Plaintiff complains that she does not believe that she had an outstanding warrant at the time of the search of the home, and she claims that her name was not on the search warrant, so she doesn't believe the search of her bedroom at the home was lawful. Thus, plaintiff believes she was subject to a false arrest and false imprisonment. Plaintiff has not articulated which of the defendant correctional officers placed her under arrest or kept her imprisoned at the Jail. Plaintiff also complains that Judge Harmon and Judge Dolan have refused to give her a bond reduction, so she has been required to spend her time in jail rather than be released on bond.

Plaintiff seeks monetary relief and requests to be released from Scott County Jail.

Discussion

Plaintiff's complaint is legally frivolous as to Judges Harmon and Dolan because they are "entitled to absolute immunity for all judicial actions that are not 'taken in a complete absence of all jurisdiction.'" Penn v. United States, 335 F.3d 786, 789 (8th Cir. 2003) (quoting Mireles v. Waco, 502 U.S. 9, 11-12 (1991)). ...


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