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O'Laughlin v. Bert

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

February 28, 2019

TIMOTHY P. O'LAUGHLIN, Plaintiff,
v.
MICHAEL A. BERT, Defendant.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon the motion of plaintiff Timothy P. O'Laughlin, currently confined at Springfield Medical Center for Federal Prisoners, for leave to commence this action without payment of the required filing fee. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $6.00. See 28 U.S.C. § 1915(b)(1). Furthermore, based upon a review of the complaint, the Court finds that the complaint should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

         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 or her 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, until the filing fee is fully paid. Id.

         Plaintiff has submitted an affidavit in support of his request to proceed without prepaying the filing fee. A review of plaintiff's financial information indicates an average monthly deposit of $30.00 in his prison account. Plaintiff has insufficient funds to pay the entire filing fee. Accordingly, the Court will assess an initial partial filing fee of $6.00, which is 20 percent of plaintiff's average monthly deposit.

         Legal Standard on Initial Review

         Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To state a claim for relief, a complaint must plead more than “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.” Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Id. at 679.

         When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled facts as true. Furthermore, the Court liberally construes the allegations.

         The Complaint

         Plaintiff, an inmate at Springfield Medical Center for Federal Prisoners in Springfield, Missouri, brings this action under 42 U.S.C. § 1983 alleging defendant Michael Bert violated plaintiff's constitutional rights.[1] Plaintiff alleges defendant Bert was the St. Louis County Prosecutor from 2005 through 2006.

         For the basis of his claim, plaintiff states he was unlawfully arrested and incarcerated and subject to “selective prosecution” on November 27, 2006. As to the facts that support these claims, plaintiff states as follows:

PROSECUTOR; MICHAEL A. BERT, ATT'S. PUB. DEF. OFF.: MISS SCHULTZ; REBECCA-BARBE PICKET; PAUL YARNS; NANCI MCCARTHY: 03/25/2005 THRU 11/27/2006; S.L. COUNTY MO 63105. ALLOWED ABUSES, DUE PROCESS/CIVIL RIGHTS VIOLATIONS, ERRORS/MISREPRESENTATION. HON. JUDGE JOHN KINTZ: ALLOWED A PLEA BARGAIN TO OCCUR IN A HALLWAY, WAS NOT VOLUNTARY, NOT IN OPEN COURT, NOT RECORDED BY THE COURT ROOM REPORTER (STENOGRAPHER) (ALL ON RECORD) WAS NOT “CHECKLISTED” BY THE JUDGE HON. JOHN KINTZ AS IF TO VERIFY IF I “TIMOTHY OLAUGHLIN” UNDERSTOOD MY RIGHTS TO THAT OF THE PLEA BARGAIN AND TO NOT SIGN THE FORM BY MYSELF AND BY THE JUDGE. ALLEGED VICTIMS [NOT PRESENT].

         For damages, plaintiff seeks $120 million in actual damages and $20 million in punitive damages. In addition to these, plaintiff seeks “damages awarded to the F.B.I. NCIC record inquiry run date on 04/10/2012, ...


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