United States District Court, E.D. Missouri, Eastern Division
JOHNNY M. ESPARZA, Plaintiff,
KRISTOPHER D. CREWS, Defendant.
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of plaintiff Johnny
Esparza, a prisoner, for leave to commence this civil action
without prepayment of the required filing fee. Having
reviewed the motion and the financial information submitted
in support, the Court has determined to grant the motion, and
assess an initial partial filing fee of $1.60. See
28 U.S.C. § 1915(b)(1). In addition, for the reasons
discussed below, the Court will dismiss the complaint,
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.
support of the instant motion, plaintiff submitted an inmate
account statement showing an average monthly balance of
$4.64, and an average monthly deposit of $8.00. The Court
will therefore assess an initial partial filing fee of $1.60,
which is twenty percent of plaintiff's average monthly
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).
action was filed on June 8, 2018 by plaintiff Johnny M.
Esparza, an inmate at the Northeast Correctional Center,
against Kristopher D. Crews, an attorney. Plaintiff avers
that Crews is a private attorney who also works as a public
defender pursuant to a contract with the state public
defender. In the complaint, plaintiff references prior
criminal proceedings in which he was a defendant, and he also
references child custody proceedings. Plaintiff states that his
children were taken away from him. He states that he sues
Crews in an official and individual capacity.
to the complaint, Crews did nothing as Crawford County used a
statement made by a person who was hospitalized and taking
pain medication, and who later stated she did not remember
making a statement. Plaintiff claims he lost his children
“over a girl that didn't even live with me . . .
and my lawyer did nothing.” (Docket No. 1 at 3).
Plaintiff states that mental and physical pain do not
“begin to describe what the man did to me by doing
nothing.” Id. at 4. He claims that before his
troubles he did not have a drug or legal problem, but that
Crews would not do anything and “the stress with [his]
cancer caused [him] to give.” Id. Plaintiff
went to rehab, and later turned himself in. Plaintiff writes:
“the guy has mentally put [him] through hell and has
caused major physical problems, ” and that “when
it's all said and done Kristopher Crews allowed all of
this to happen.” Id. Plaintiff ...