United States District Court, E.D. Missouri, Eastern Division
RISHARD L.A. EDWARDS, Plaintiff,
STATE OF MISSOURI, Defendant.
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion of Rishard L.A.
Edwards 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 this case, without prejudice.
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.
correspondence filed with the complaint, plaintiff stated he
was unable to obtain a copy of his prison account statement.
(Docket No. 1, attch. 3). Therefore, the Court will assess an
initial partial filing fee of $1.00. 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.”). Any claim that plaintiff is unable to pay
this amount must be supported by a copy of plaintiff's
prison account statement.
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).
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).
brings this action pursuant to 42 U.S.C. § 1983 against
the State of Missouri, seeking to vindicate violations of his
federally-protected rights. He alleges that, on March 2,
2018, he was found guilty by a jury of first degree robbery,
first degree assault, and armed criminal action. On April 16,
he was sentenced to serve a total prison term of 20 years.
Plaintiff claims that the State of Missouri charged him
“with Robbery 1st (for causing serious physical injury)
and Assault 1st (for causing serious physical injury) which
put [him] in Double Jeopardy because the statue
[sic] of the charges has the same elements.”
(Docket No. 1 at 5). Plaintiff alleges that one charge is a
lesser charge, and that he therefore should not have been
convicted of both. He claims the State of Missouri violated
his fifth and fourteenth amendment rights. He seeks damages
in the amount of $25, 000, 000.00. He seeks no other form of
Eleventh Amendment bars federal courts from entertaining
private suits against a State absent a waiver of its
sovereign immunity, or a valid congressional abrogation of
that immunity. Will v. Michigan Dept. of State
Police, 491 U.S. 58, 66 (1989). Here, there is no
indication that the State of Missouri has waived its Eleventh
Amendment immunity. In addition, Congress, in passing §
1983, did not abrogate the States' Eleventh Amendment
immunity. Id. The Court concludes that
plaintiff's § 1983 claims are barred by the Eleventh
Amendment, and will therefore dismiss this action, without
prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS HEREBY ORDERED that plaintiff's
motion to proceed in forma pauperis (Docket No. 2)
IS FURTHER ORDERED that plaintiff must pay an
initial filing fee of $1.00 within twenty-one (21) days of
the date of this Order. Plaintiff is instructed to make his
remittance payable to “Clerk, United States District
Court, ” and to include upon it: (1) his name; (2) his
prison registration number; ...