United States District Court, E.D. Missouri, Southeastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
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.
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 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.
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.
Standard on Initial Review
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).
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
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.
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).
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.
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.
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 ...