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Morrison v. Hale

United States District Court, E.D. Missouri, Eastern Division

May 17, 2017

HERBERT W. MORRISON, JR., Plaintiff,
v.
ANDREW HALE, et al., Defendants.

          MEMORANDUM AND ORDER

          NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court upon the motion of plaintiff Herbert W. Morrison, Jr., an inmate at Southeast Correctional Center, for leave to commence this action without prepayment of the filing fee. The motion will be granted, and plaintiff will be given the opportunity to submit an amended complaint.

         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. 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 his 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.

         Plaintiff has submitted an affidavit and a certified inmate account statement showing an average monthly deposit of $179.15, and an average monthly balance of $55.73 The Court will therefore assess an initial partial filing fee of $35.83, twenty percent of plaintiff's average monthly deposit.

         Legal Standard on Initial Review

         Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To state a claim for relief under § 1983, a complaint must plead more than “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to, inter alia, draw upon judicial experience and common sense. Id. at 679.

         This Court is required to liberally construe a pro se complaint. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, this does not mean that pro se complaints may be merely conclusory. Even pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980); see also Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004) (federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint”). Giving a pro se complaint the benefit of a liberal construction does not mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed without counsel. See McNeil v. U.S., 508 U.S. 106, 113 (1993).

         The Complaint

         Plaintiff describes the complaint as a “42 U.S.C. § 1983 complaint for damages for civil rights violations, 18 U.S.C. § 1030 complaint for damages for unauthorized access to a protected computer, and complaint in Replevin.” (Docket No. 1 at 1). He names twelve defendants: law enforcement officers Andrew Hale, Timothy Sweeso, Shawn Reiland, Timothy Green; Steven Grim, and John Does 1-2; the City of Florissant; Assistant Prosecuting Attorney Ashley Bailey-Smith; and private citizens Tina Broadway, Robyn Ambs, and Kathleen Pickett. The complaint spans 53 pages, and contains multiple counts. Plaintiff's claims appear to relate to events that happened when he was investigated, arrested and prosecuted for possession and promotion of child pornography, child molestation, statutory sodomy, statutory rape, and sexual exploitation of a minor. He seeks monetary damages.

         The complaint violates Rule 8(a) of the Federal Rules of Civil Procedure, which requires (in relevant part) that a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” This complaint is far too long, and it brims with irrelevant and redundant statements, legalese, and conclusory statements. For example, plaintiff begins Count 1 by writing:

Defendant Sweeso, by trickery, deceit, fraud, unethical practice for a public official, contrary to his oath of office and in violation of Plaintiff's right to be free from unreasonable search and seizure, was the direct and proximate cause of Plaintiff's residential property the subject of a warrantless exploratory search which was general in nature . . . On its face the search appears valid and judicially impenetrable, however, based on information known by Defendant Sweeso at the time of the violation, the consent obtained was not in accordance with the Constitution.

         (Docket No. 1 at 19). In Count 6, plaintiff writes:

As a police officer, Defendant Grimm was sympathetic to the anger emanating from Defendant Hale by the allegation made by Defendant Hale's friend and fellow police officer's step-daughter, and believing he possessed the intellectual acuity to successfully conduct and conceal a unconstitutional [sic] search, ...

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