United States District Court, E.D. Missouri, Southeastern District
PERCY Q. WHITTIER, Plaintiff,
JENNIFER JOYCE, Defendant.
MEMORANDUM AND ORDER
E. JACKSON, UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of plaintiff Percy
Q. Whittier, an inmate at the Saint Louis Medium Security
Institution, for leave to commence this action without
prepayment of the required filing fee. For the reasons stated
below, the Court will grant the motion and assess an initial
partial filing fee of $10.86. The Court will also dismiss
this action pursuant to 28 U.S.C. § 1915(e)(2)(B).
U.S.C. § 1915(b)(1)
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 twenty 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 twenty 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
$10.00, until the filing fee is fully paid. Id.
support of the instant motion, plaintiff submitted an
affidavit and an inmate account statement. Plaintiff's
average monthly balance is $54.28. The Court will therefore
assess an initial partial filing fee of $10.86, which is
twenty percent of plaintiff's average monthly balance.
U.S.C. § 1915(e)(2)(B)
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). 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).
whether an action fails to state a claim upon which relief
can be granted requires 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.” Iqbal,
129 S.Ct. at 1950. The court must review the factual
allegations in the complaint “to determine if they
plausibly suggest an entitlement to relief.”
Id. at 1951.
pleadings are liberally construed, and are held to a less
stringent standard when considering a dismissal of the case
for failure to state a claim. See Haines v. Kerner,
404 U.S. 519, 520 (1972); Horsey v. Asher, 741 F.2d
209, 211 n. 3 (8th Cir. 1984). Even so, a pro se complaint
must contain specific facts to support its conclusions.
Kaylor v. Fields, 661 F.2d 1177, 1183 (8th Cir.
brings this action pursuant to 42 U.S.C. § 1983,
alleging violation of his rights under the Fifth, Sixth and
Fourteenth Amendments to the United States Constitution.
Named as defendant is Jennifer Joyce, the Circuit Attorney
for the City of Saint Louis. Plaintiff alleges that Joyce
refused to comply with Missouri Supreme Court Rules 25.03A(1)
and 25.03A(9), which are rules of criminal procedure related
to discovery. Plaintiff complains that Joyce's refusal to
follow these rules forced him to go to trial in May 2009
without discovery, and forced him to “plea out”
in July of 2012. (Docket No. 1 at 5). Plaintiff seeks
monetary relief and an order “discharging” his
2012 criminal case and finding Joyce “guilty of the
violations based on the evidence.” (Id. at 6).
42 U.S.C. § 1983 was designed to provide a “broad
remedy for violations of federally protected civil
rights.” Monell v. Department of Social
Services, 436 U.S. 658, 685 (1978). However, 42 U.S.C.
§ 1983 provides no substantive rights; it merely
provides a remedy for violations of all “rights,
privileges, or immunities secured by the Constitution and
laws [of the United States].” 42 U.S.C. § 1983;
see also Albright v. Oliver, 510 U.S. 266, 271
(1994) (42 U.S.C. § 1983 “merely provides a method
for vindicating federal rights elsewhere conferred.”)
To state a claim under 42 U.S.C. § 1983, a plaintiff
must establish: (1) the violation of a right secured by the
Constitution or laws of the United States and (2) that the
alleged deprivation of that right was committed by a person
acting under color of state law. West v. Atkins, 487
U.S. 42, 48 (1988).
the facts that are alleged in the complaint, the Court
concludes that plaintiff's claims are not cognizable
under 42 U.S.C. § 1983. Judgment in plaintiff's
favor would necessarily imply the invalidity of his
convictions or sentences. As such, his claims are not
cognizable in a § 1983 proceeding. Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994); see also
Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995).
Plaintiff has not alleged, nor does independent research
reveal, that his convictions or sentences have previously
been reversed, expunged, or called into question by the
issuance of a writ of habeas corpus. Even if plaintiff were
seeking only declaratory relief, his claims would be
non-cognizable. See Edwards v. Balisok, 520 U.S.
641, 648 (1997) (applying the Heck rule to a state
prisoner's claim for declaratory relief). The claims
plaintiff asserts in the instant complaint may only be