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Esparza v. Crews

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

June 27, 2018

JOHNNY M. ESPARZA, Plaintiff,
v.
KRISTOPHER D. CREWS, Defendant.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.

         This 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, without prejudice.

         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.

         In 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 deposit.

         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

         This 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.[1] Plaintiff states that his children were taken away from him. He states that he sues Crews in an official and individual capacity.

         According 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 ...


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