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Swaim v. Fox

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

July 9, 2019

EDWARD KAVANAUGH SWAIM, Plaintiff,
v.
MARY FOX, et al., Defendants.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         This 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.

         The Complaint

         Plaintiff 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.

         Plaintiff 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).

         In 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.

         As a 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).

         Discussion

         Plaintiff 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.

         A. 28 U.S.C. § 1915(g)

         The 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).

         Section 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 physical injury.

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 ...


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