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Shade v. Kinskey

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

May 4, 2018

WILLIAM SHADE, Plaintiff,
v.
CARL KINKSEY, et al., Defendants.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the motion of plaintiff William Shade for leave to commence this civil action without prepayment of the required filing fee. The Court will grant the motion, and assess an initial partial filing fee of $1.00. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the Court will dismiss plaintiff's claims based upon the First Amendment, and stay and administratively close the remaining proceedings pursuant to the Supreme Court case of Wallace v. Kato, 549 U.S. 384 (2007), due to the pendency of an underlying criminal case against plaintiff that arises out of the same facts.

         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 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.

         When plaintiff did not submit a certified inmate account statement in support of the instant motion, the Court ordered him to do so. (Docket No. 4). In response, plaintiff averred that he had tried, without success, to obtain a copy of the statement. (Docket No. 5). The Court will therefore assess an initial partial filing fee of $1.00, an amount that is reasonable based upon the information before the Court. See Henderson v. Norris, 129 F.3d 481, 484 (8th Cir. 1997).

         Legal Standard on Initial Review

         Under 28 U.S.C. § 1915(e)(2)(B), the Court is required to dismiss a complaint filed in forma pauperis if it 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). An action is malicious if it is undertaken for the purpose of harassing the named defendants 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). 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, 550 U.S. 544, 570 (2007).

         To 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, 556 U.S. 662, 679 (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 678. Second, the Court must determine whether the complaint states a plausible claim for relief. Id. at 679. This is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

         The plaintiff is required to plead facts that show more than the “mere possibility of misconduct.” Iqbal, 556 U.S. at 679. The Court must review the factual allegations in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. 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 680-82.

         Pro se complaints are to be liberally construed, Estelle v. Gamble, 429 U.S. 97, 106 (1976), but they still must 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). The Court must weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 32 (1992). Federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint.” Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004).

         The Complaint

         Plaintiff, an inmate at the Ste. Genevieve County Jail, brings this action pursuant to 42 U.S.C. § 1983 against Cark Kinskey (Ste. Genevieve County prosecuting attorney); Officer Nick Basinger, Baliff Unknown Conrad, Lieutenant Unknown Crump, the City of Ste. Genevieve, and Sergeant P. Karol. He sues the defendants in an official and individual capacity.

         According to Missouri Case.net, the State of Missouri's online docketing system, plaintiff is presently a defendant in the case of State v. William J. Shade, No. 17SG-CR00789-01 (24th Jud. Cir. Sept. 13, 2017). He is facing felony charges of first degree kidnapping, armed criminal action, first degree tampering with a motor vehicle, resisting arrest, and unlawful use of a weapon. In the instant complaint, plaintiff explains the events leading to his arrest and imprisonment in the Ste. Genevieve County Jail on these charges, and claims that the defendants violated his First, Fourth and Fourteenth Amendment rights. Specifically, he alleges as follows.

         On or around September 13, 2017, plaintiff was in a car being driven by his fiancée, Amy. They were driving to the Ste. Genevieve County courthouse to allow plaintiff to resolve pending charges against him for operating a vehicle without a license, unlawful use of drug paraphernalia, and speeding. While en ...


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