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Winters v. Wiegert

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

May 6, 2019

CEDRIC L. WINTERS, Plaintiff,
v.
DAVID WIEGERT, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the motion of plaintiff Cedric L. Winters, 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 $1.07. See 28 U.S.C. § 1915(b)(1). Additionally, 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 a certified inmate account statement showing an average monthly deposit of $5.38, and an average monthly balance of $3.59. The Court will therefore assess an initial partial filing fee of $1.07, which is twenty percent of plaintiffs average monthly deposit.

         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, or fails to state a claim upon which relief may be granted. 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 fails to state a claim upon which relief may 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).

         "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw upon judicial experience and common sense. Id. at 679. The court must assume the veracity of well-pleaded facts, but need not accept as true "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. at 678 (citing Twombly, 550 U.S. at 555).

         This Court must liberally construe complaints filed by laypeople. Estelle v. Gamble, 429 U.S. 97, 106 (1976). This means that "if the essence of an allegation is discernible," the court should "construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework." Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even pro se complaints 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). Federal courts are not required to assume facts that are not alleged, Stone, 364 F.3d at 914-15, nor are they required to interpret procedural rules so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113(1993).

         The Complaint

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 against attorney David Weigert, and the Circuit Court for Pemiscot County, Missouri. He states he sues the defendants in their official and individual capacities.

         Plaintiffs claims stem from criminal proceedings in the Circuit Court for Pemiscot County, in which he was a defendant represented by Wiegert. In the complaint, plaintiff states he "entered a plea to second degree assault," and he also states he was sentenced on June 17, 2014. (Docket No. 1 at 4). In setting forth his claims against the Circuit Court for Pemiscot County, plaintiff alleges that his "right to due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution" and rights secured by the Missouri Constitution were violated "when the Court accepted his plea without a sufficient factual basis to support it" (Docket No. 1 at 4). He alleges that the Court's acceptance of his plea to second degree assault was prejudicial because the State could not actually prove the case against him, and the Court "showed prejudice by their failure to recognize insufficient factual basis to support his plea." Id. In setting forth his claims against Wiegert, plaintiff alleges that Wiegert was "ineffective" and "failed to demonstrate the skill and diligence a reasonably competent attorney would display," and mat plaintiff was prejudiced by that failure. Id.

         Plaintiff claims he suffered injury to his mental health, and false imprisonment. As ...


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