United States District Court, E.D. Missouri, Southeastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD, AUTREY UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of plaintiff James
Robert Ward (registration no. 506994), an inmate at Moberly
Correctional Center, 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 $15.55. 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).
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 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.
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 $77.79. Plaintiff has insufficient funds to pay the entire
filing fee. Accordingly, the Court will assess an initial
partial filing fee of $15.55, which is 20 percent of
plaintiff's average monthly deposit.
U.S.C. § 1915(e)
to 28 U.S.C. § 1915(e)(2)(B), the Court may 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 against a defendant who is
immune from such relief. An action is frivolous if “it
lacks an arguable basis in either law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989). An
action is malicious when it is undertaken for the purpose of
harassing litigants 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).
determine whether an action fails to state a claim upon which
relief can be granted, the Court must engage in 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.” Id. The Court must
review the factual allegations in the complaint “to
determine if they plausibly suggest an entitlement to
relief.” Id. at 1951. When faced with
alternative explanations for the alleged misconduct, the
Court may exercise its judgment in determining whether
plaintiff's proffered conclusion is the most plausible or
whether it is more likely that no misconduct occurred.
Id. at 1950, 1951-52.
James Robert Ward, an inmate at Moberly Correctional Center,
brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights that purportedly occurred
during his incarceration at Saint Genevieve County Jail.
Plaintiff names as defendants in this action: Saint Genevieve
County Sheriff's Department; Sheriff Gary Stolzer; and
Public Defenders Jason Michael Emmons and Edward Loftus.
Plaintiff sues defendants in their official and individual
the time plaintiff was being held at Saint Genevieve County
Jail as a pretrial detainee, he was awaiting trial on state
criminal charges in Saint Genevieve County, Missouri, for a
Class C felony of possession of controlled substance
(methamphetamine), driving while his license had been
suspended and/or revoked, resisting a lawful traffic stop,
failure to yield to an emergency vehicle, exceeding the
posted speed limit, failing to drive on the right side of the
road, failing to drive without proper lighting and failing to
properly signal. See State v. Ward, No. 15SG-CR01256
(24th Judicial Circuit, Saint Genevieve County
Court). He was represented in his criminal action by public
defenders Jason Michael Emmons and Edward Loftus. Plaintiff
eventually decided to plead guilty, in a plea deal with the
prosecution, on June 20, 2017, to two counts of the
Indictment: possession of a controlled substance and driving
while his license was suspended and/or revoked. He was
sentenced to a total term of imprisonment of five (5) years
in the Missouri Department of Corrections. See State v.
Ward, No. 15SG-CR01256-01 (24thJudicial
Circuit, Saint Genevieve County Court).
present action, plaintiff asserts that he received
ineffective assistance of counsel from defendants Emmons and
Loftus during his state criminal trial.
attempts to bring claims on behalf of two other individuals
in this lawsuit. He claims that prior to his incarceration he
was living with Ms. Mary White. He asserts that after he was
already incarcerated at the County Jail, unnamed and unknown
police officers that plaintiff believes were from the Saint
Genevieve County Sheriff's Department showed up at Ms.
White's house and told her they had a search warrant and
“took things that wasn't auto parts” and
threatened her with locking her up for “being
argumentative.” Plaintiff claims that the officers also
broke into a truck that was parked ...