United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter comes before the Court on the motion of plaintiff
Edward Kavanaugh S waim for leave to commence this civil
action without prepayment of the filing fee. (Docket No. 4).
While incarcerated, plaintiff has brought three or more civil
actions in federal court that were dismissed as frivolous,
malicious, or for failure to state a claim. Accordingly, for
the reasons discussed below, the Court will deny plaintiff s
motion for leave to proceed in forma pauperis and dismiss
plaintiffs complaint without prejudice.
is a pro se litigant who is currently incarcerated at the
Southeast Correctional Center in Charleston, Missouri. He
brings this action pursuant to 42 U.S.C. § 1983, naming
Missouri State Public Defenders Mary Fox, Matt Waltz,
Bradford Coleman, and Gregory Mermelstein as defendants.
(Docket No. 2 at 2-3). Plaintiff does not indicate the
capacity in which defendants are sued.
alleges that defendants are liable for legal malpractice,
"extreme substandard legal representation," and for
neglecting their duties as lawyers. (Docket No. 2 at 3). He
states that his rights were never explained or discussed. He
further asserts that their actions influenced the judge to
treat him with hostility. (Docket No. 2 at 3-4).
particular, plaintiff states that his first court appearance
was never discussed. When he appeared before the judge,
plaintiff asserts that the judge acted like a prosecutor and
told him that he was either pleading guilty or starting a
trial. Plaintiff states that he told the judge he never
discussed this with his attorneys. Nevertheless, he was
denied a continuance. (Docket No. 2 at 4). Plaintiff claims
that the actions of defendants denied him effective
assistance of counsel, due process of law, equal protection,
and a fair trial, in violation of the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution.
result of this "abusive hostile treatment,"
plaintiff alleges that he suffers from posttraumatic stress
syndrome. He is seeking $ 150, 000 in damages and court
costs. (Docket No. 2 at 5).
seeks leave to commence this § 1983 action without
prepayment of the required filing fee. However, plaintiff has
filed three previous cases that were dismissed on the basis
of frivolity, maliciousness, or for failure to state a claim.
As such, his motion to proceed in forma pauperis will be
denied and this case dismissed without prejudice.
28 U.S.C. § 1915(g)
Prison Litigation Reform Act of 1996 enacted what is commonly
known as the "three strikes" provision of 28 U.S.C.
§ 1915(g). Orr v. Clements, 688 F.3d 463, 464
(8th Cir. 2012).
1915(g) provides in relevant part:
In no event shall a prisoner bring a civil action...under
this section if the prisoner has, on three or more prior
occasions, while incarcerated or detained in any facility,
brought an action...in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious
28 U.S.C. § 1915(g). This section does not apply unless
the inmate litigant has three strikes at the time he files
his lawsuit or appeal. Campbell v. Davenport Police
Dep't,471 F.3d 952, 952 (8th Cir. 2006).
Prisoners who have had three previous civil lawsuits or
appeals dismissed as frivolous, malicious, or for failure to
state a ...