United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of plaintiff
Nathaniel Simmons, an inmate at Fulton Reception and
Diagnostic 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 $.10. 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 balance
of $2.80. Plaintiff has insufficient funds to pay the entire
filing fee. Accordingly, the Court will assess an initial
partial filing fee of $.10, which is 20 percent of
plaintiff's average monthly balance.
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.
an inmate at Fulton Reception and Diagnostic Center brings
this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights. Plaintiff has named as
defendants in this action his public defender, Thomas Gabel,
and the Judge in his criminal case, John C. Brackman.
asserts that he was misinformed by his public defender,
defendant Gabel, as to what his criminal sentence would
possibly be for pleading guilty to the crime of Driving While
Intoxicated as a persistent offender. Plaintiff believes he
did not receive effective assistance from his public
defender, and he claims that Judge Brackman did not
adequately review the circumstances and evidence when making
a decision as to his sentence.
asserts that he served a year and a half imprisonment on his
sentence, and he claims that he “had the case vacated
in August of 2009.” He claims he “had the case
dismissed (twice), ” but he has continuously been
re-prosecuted on the same crime. Plaintiff asserts that he
has lost his marriage and custody of his children as a result
of his legal issues.
seeks financial remuneration, in addition to ...