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Johnson v. Greenwell

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

June 3, 2019

BOBBY DUANE JOHNSON, Plaintiff,
v.
TOMMY GREENWELL, Defendant.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE

         This 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.

         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 $10.00, until the filing fee is fully paid. Id.

         In 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.

         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 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 factual allegation”).

         When 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).

         The Complaint

         Plaintiff 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.

         Plaintiff states that on August 7, 2018, his attorney “had [him] plead guilty to 4 years in prison.” (Docket No. 1 at 3).[1] 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).[2]

         Plaintiff 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).

         Since 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”).

         In the 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).

         The second supplement is a judgment, marked Appendix D, [3] in 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 Pemiscot County.

         In the 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).

         Plaintiff's 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.

         Plaintiff's 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.[4]

         In his 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.[5] (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).

         Plaintiff's seventh supplement is a document marked Appendix G.[6] (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).

         Plaintiff 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.

         Discussion

         Plaintiff 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, ...


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