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Bader v. Keefe Supply Co.

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

July 12, 2018

KYLE J. BADER, Plaintiff,
v.
KEEFE SUPPLY COMPANY, et al., Defendants.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the motion of plaintiff Kyle J. Bader, 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 $1.00. 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 states that he has tried unsuccessfully to obtain a copy of his inmate account statement. He also states that he received some money to purchase commissary items. 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) (when a prisoner is unable to provide the Court with a certified copy of his prison account statement, the Court should assess an amount “that is reasonable, based on whatever information the court has about the prisoner's finances.”).

         Legal Standard on Initial Review

         Under 28 U.S.C. § 1915(e)(2), 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 states that he brings this action on behalf of himself “and all others similarly situated” against thirteen defendants: Keefe Supply Company, Sheriff John Jordan, Captains James P. Mulcahy and Ruth Ann Dickerson, Commissary Supervisor Unknown Rhea, the City of Jackson, Missouri, Cape Girardeau County, the Mayor of Jackson, Missouri, Lieutenant Unknown Davis, Prosecuting Attorney Christopher K. Limbaugh, and Judges Michael Gardner, Albert Camp and Unknown Lewis.

         At the time plaintiff filed the instant complaint, he was incarcerated in the Cape Girardeau County Jail (“Jail”). All of plaintiff's claims stem from the pricing of goods in the Jail's commissary, the fact that inmates are required to pay sales tax on commissary purchases, and the practice of requiring the family members of inmates to pay deposit fees. Plaintiff sets forth numerous claims that these practices violate rights guaranteed by the United States Constitution, and that they also violate various federal and state laws. In sum, plaintiff alleges that items are sold in the commissary for prices that are much higher than local stores (such as Wal-Mart) charge members of the public for the same item. Plaintiff alleges that all of the defendants engaged in a massive civil conspiracy in violation of federal and state law to unjustly enrich themselves at the expense of inmates. He states he brings a Monell claim against the City of Jackson, Missouri and against Cape Girardeau County and defendants Lewis, Gardner, Camp, Limbaugh, Jordan, and the Mayor of Jackson, Missouri for having a policy of illegally charging sales tax on commissary and of charging unjust and oppressive commissary prices. Plaintiff also states he ...


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