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Howard v. Bernstein

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

February 20, 2018

DERRICK HOWARD, Plaintiff,
v.
DAVID JAY BERNSTEIN, 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 Derrick Howard, (registration no.24997-044), an inmate at the United States Penitentiary in Coleman, Florida, 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 $2.50. See 28 U.S.C. § 1915(b)(1). Furthermore, after reviewing the complaint, the Court will order the Clerk to issue process or cause process to be issued on the 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 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 $12.50. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $2.50.

         28 U.S.C. § 1915(e)

         Pursuant 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 fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).

         In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

         The Complaint

         Plaintiff, a Federal inmate at Coleman United States Penitentiary in Coleman, Florida, brings this action pursuant to 28 U.S.C. § 1332, or this Court's diversity jurisdiction, alleging that his attorneys committed legal malpractice, negligence, breach of fiduciary duty and fraudulent misrepresentation by failing to properly represent him in a prior lawsuit he brought in this Court. See Howard v. Bank of America, N.A., et al., No. 4:10-CV-2365 CDP (E.D.Mo.). Plaintiff asserts that defendants wrongfully voluntarily dismissed his prior action, misrepresenting to plaintiff that the Missouri Savings Statute would save his claims from dismissal in a subsequent lawsuit. However, a subsequent lawsuit was dismissed on statute of limitations grounds. See BIS Investments v. Bank of America, N.A., No. 4:12-CV0195 CDP (E.D.Mo.).

         The Court has reviewed the allegations in plaintiff's complaint and will issue process on plaintiff's claims against defendants at the registered agent for the law office which employees defendants.

         Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. #2] is GRANTED.

         IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $2.50 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to “Clerk, United States District Court, ” and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding.

         IT IS FURTHER ORDERED that if plaintiff fails to pay the initial partial filing fee within thirty (30) days of the date of this Order, then ...


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