United States District Court, E.D. Missouri, Southeastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the motion of plaintiff
Bobby Duane Johnson for leave to commence this civil action
without prepayment of the filing fee. (Docket No. 3). Having
reviewed the motion and the financial information submitted
in support, the Court has determined that plaintiff lacks
sufficient funds to pay the entire filing fee and will assess
an initial partial filing fee of $10.50. See 28
U.S.C. § 1915(b)(1). Additionally, for the reasons
discussed below, the Court will dismiss plaintiff's
complaint 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 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 $10.00, until the
filing fee is fully paid. Id.
support of his motion to proceed in forma pauperis, plaintiff
submitted a copy of his certified inmate account statement.
(Docket No. 4). The inmate account statement showed an
average monthly deposit of $52.50. The Court will therefore
assess an initial partial filing fee of $10.50, which is 20
percent of plaintiff's average monthly deposit.
Standard on Initial Review
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 can be
granted. To state a claim under 42 U.S.C. § 1983, a
plaintiff must demonstrate a plausible claim for relief,
which is more than a “mere possibility of
misconduct.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009). “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 upon judicial experience and common sense.
Id. at 679. The court must “accept as true the
facts alleged, but not legal conclusions or threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements.” Barton v. Taber,
820 F.3d 958, 964 (8th Cir. 2016). See also
Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73
(8th Cir. 2016) (stating that court must accept
factual allegations in complaint as true, but is not required
to “accept as true any legal conclusion couched as a
reviewing a pro se complaint under § 1915(e)(2), the
Court must give it the benefit of a liberal construction.
Haines v. Kerner, 404 U.S. 519, 520 (1972). A
“liberal construction” means that if the essence
of an allegation is discernible, the district court should
construe the plaintiff's complaint in a way that permits
his or her claim to be considered within the proper legal
framework. Solomon v. Petray, 795 F.3d 777, 787
(8th Cir. 2015). However, even pro se complaints
are required to 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). See also
Stone v. Harry, 364 F.3d 912, 914-15 (8th
Cir. 2004) (stating that federal courts are not required to
“assume facts that are not alleged, just because an
additional factual allegation would have formed a stronger
complaint”). In addition, affording a pro se complaint
the benefit of a liberal construction does not mean that
procedural rules in ordinary civil litigation must be
interpreted so as to excuse mistakes by those who proceed
without counsel. See McNeil v. United States, 508
U.S. 106, 113 (1993).
is currently incarcerated at the Pemiscot County Jail in
Caruthersville, Missouri. He brings this action pursuant to
42 U.S.C. § 1983 naming Sheriff Tommy Greenwell as the
sole defendant. (Docket No. 1 at 2). Sheriff Greenwell is
sued in both his official and individual capacity.
states that on August 7, 2018, his attorney “had [him]
plead guilty to 4 years in prison.” (Docket No. 1 at
On August 10, 2018, Sheriff Greenwell had his
“transportation driver take him to Bonne Terre prison,
” presumably meaning the Eastern Reception, Diagnostic
and Correctional Center. Plaintiff was returned to Pemiscot
County pursuant to a writ of habeas corpus ad prosequendum on
November 1, 2018. Thereafter, on November 6, 2018, Judge
Copeland allegedly told plaintiff that “what they had
[him] plead to back in August was not even a crime at the
time [his] alleged crime happened.” Plaintiff states
that his sentence was then set aside. He indicates that this
occurred pursuant to Missouri Supreme Court Rule 29.13.
(Docket No. 11 at 1).
asserts that the ninety days he spent in prison in Bonne
Terre amounted to an illegal detention. He further states
that on November 20, 2018, his attorney “tried to
punish [him] for [their] mistakes by trying to have [him]
plead guilty to a higher crime.” (Docket No. 1 at 3-4).
When plaintiff asked why he should be punished for the
mistakes of others, he was told that “we will take you
to trial.” (Docket No. 1 at 4). Plaintiff claims that
he is going to be sentenced twice for the same crime, thereby
violating the Double Jeopardy Clause of the United States
Constitution. (Docket No. 1 at 4, 6).
filing his complaint on February 7, 2019, plaintiff has
submitted a number of supplements, which he refers to as
appendices. These documents will be treated as part of the
pleading. See Fed. R. Civ. P. 10(c) (“A copy
of a written instrument that is an exhibit to a pleading is
part of the pleading for all purposes”).
first supplement, plaintiff alleges that his attorney, Daniel
Cornacchione, “is very clearly trying to circumvent the
Double Jeopardy Clause…by illegally trying to change
the case number.” (Docket No. 8 at 1). He states that
his attorney's conduct is “very unprofessional and
unethical” and must not be allowed to stand. Attached
to the supplement is a document marked Appendix B, which is a
letter from plaintiff's attorney advising him of an
upcoming court date. (Docket No. 8 at 2).
second supplement is a judgment, marked Appendix D,
State of Missouri v. Johnson, No. 18PE-CR00007-01
(34th Cir., Pemiscot County). (Docket No. 9 at 1).
The judgment indicates that plaintiff pled guilty to a charge
of felony failure to appear on August 7, 2018 and was
subsequently sentenced to four years of incarceration. Also
attached to the supplement is Appendix E, a printout of a
writ of habeas corpus ad prosequendum in State of
Missouri v. Johnson, No. 17PE-CR00218-01
(34th Cir., Pemiscot County). (Docket No. 9 at 3).
The writ directs the Missouri Department of Corrections to
allow plaintiff to attend a November 6, 2018 hearing in
third supplement, plaintiff states that his judgment was set
aside pursuant to Missouri Supreme Court Rule 29.13. (Docket
No. 11 at 1). Pursuant to this rule, plaintiff claims that he
“shall” be discharged unless the court finds
there are reasonable grounds to believe he can be convicted
of an offense if properly charged. However, plaintiff states
that he has not been properly charged. Moreover, he asserts
that Rule 29.13 has a thirty-day time limit that has been
exceeded. As such, plaintiff seeks his immediate release.
(Docket No. 11 at 2). Attached to the third supplement are
copies of Appendices D and E. (Docket No. 11 at 3-5).
fourth supplement states that he is being retaliated against
by Pemiscot County Jail Administrator Torrance Akins because
of this lawsuit and because of the lawsuit he is planning
against Akins himself. (Docket No. 12 at 1). The nature of
this alleged retaliation is not described. Plaintiff also
complains that Judge Reeves is allowing the prosecutor who
was removed from his case to choose a special prosecutor. He
further asserts that he has given Judge Reeves “more
than enough on the Double Jeopardy issue to dismiss all
charges.” Attached to the fourth supplement is a letter
to Judge Reeves marked Appendix F. (Docket No. 12 at 2). In
the letter, plaintiff insists that his rights under the
Double Jeopardy Clause have been violated and that his
charges should be dismissed.
fifth supplement is a document marked as Appendix G. (Docket
No. 13 at 1). In Appendix G, plaintiff states that he was
assaulted by an inmate at the Pemiscot County Jail. He claims
that the inmate was not supposed to be in his pod, but that
Jail Administrator Torrance Akins placed him there. He
further alleges that Jail Administrator Akins placed
“someone else in the pod that's not supposed to be
here [and] then told him [that] he (Torrance Akins) would not
give him contraband because [plaintiff] had filed a
grievance.” According to plaintiff, this was done to
have him assaulted.
sixth supplement, plaintiff requests that the Court take
jurisdiction of State of Missouri v. Johnson, No.
17-PE-CR00218 (34th Cir., Pemiscot County) from
Judge Reeves based on an alleged violation of the Double
Jeopardy Clause. (Docket No. 14 at 1). Attached to the sixth
supplement is a document marked Appendix F, which is a letter
to Judge Reeves dated May 13, 2019. (Docket No. 14 at 2). In the
letter, plaintiff expresses his desire that all charges
against him be dismissed. He states that the Double Jeopardy
Clause should protect him from the State of Missouri's
repeated attempts to convict him. He further states that he
should not be punished for the State's mistakes and that
he should “be free to go.” (Docket No. 14 at 3).
seventh supplement is a document marked Appendix
(Docket No. 15 at 1). In Appendix G, plaintiff states that he
was sentenced to two four-year prison terms on August 7,
2018, the sentences to run concurrently. He was placed into
the custody of the Missouri Department of Corrections on
August 10, 2018. On October 10, 2018, plaintiff received
notice that he would have a parole hearing on December 12,
2018, with a decision six-to-eight weeks later. Plaintiff
thus concludes that he would have received his parole on
February 12, 2018. Instead, on November 1, 2018, plaintiff
was brought back to Pemiscot County by the prosecutor. On
November 6, 2018, Judge Copeland “vacated the
sentence” in State of Missouri v. Johnson, No.
17PE-CR00218-01 (34th Cir., Pemiscot County).
Plaintiff alleges that on November 20, 2018, the prosecutor
tried to get him to plead guilty to the same offense with a
new case number. Plaintiff refused, and the matter was set
for trial. He asserts that the Double Jeopardy Clause is
being violated because the State is trying to
“resentence [him] for the same offense twice.”
(Docket No. 15 at 2-3).
seeks an order dismissing all charges against him and
providing for his immediate release. (Docket No. 1-5 at 1).
He also requests damages in the amount of $108, 000 for the
time he spent falsely imprisoned, and a further $300, 000 for
pain and suffering.
brings this action pursuant to 42 U.S.C. § 1983,
alleging that Sheriff Greenwell violated his constitutional
rights by falsely taking him to prison on August 10, 2018.
For the reasons discussed below, ...