United States District Court, E.D. Missouri, Southeastern Division
HERBERT E. MILLER, Plaintiff,
JARED W. KUTZ, et al., Defendants.
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the motion of plaintiff
Herbert E. Miller for leave to commence this civil action
without prepayment of the required filing fee. (Docket No.
2). 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 $30.09. See
28 U.S.C. § 1915(b)(1). Additionally, for the reasons
discussed below, this action will be dismissed for failure to
state a claim. See 28 U.S.C. § 1915(e)(2)(B).
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 for leave to proceed in forma pauperis,
plaintiff submitted a certified copy of his inmate account
statement. (Docket No. 3). The certified inmate account
statement shows an average monthly deposit of $150.45. The
Court will therefore assess an initial partial filing fee of
$30.09, which is 20 percent of plaintiff's average
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 (8thCir.
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 a pro se litigant currently incarcerated at the Northeast
Correctional Center in Bowling Green, Missouri. He brings
this action pursuant to 42 U.S.C. § 1983. (Docket No.
1-1 at 1). He names the following individuals as defendants:
Jared W. Kutz; Jay P. Wengert; Jim Sutterer; Carl Leuckel,
Jr.; and John Doe. (Docket No. 1 at 1). Defendants are sued
in both their individual and official capacities. (Docket No.
1-1 at 1).
states that he was appointed by Governor Mel Carnahan as
Perry County's head coroner in 1995. Later, he was
elected to that position. He served as the head coroner for
Perry County from 1995 until 2017.
asserts that defendants Kutz, Wengert, Sutterer, and Leuckel
are members of the Perry County Board of Commissioners.
Specifically, Kutz is the Clerk; Wengert is the First
District Commissioner; Sutterer is the Second District
Commissioner; and Leuckel is the Presiding Commissioner.
Defendant Doe is purported to be the Director of the First
State Community Bank.
accuses defendants of colluding together to commit “the
crimes” of illegally taking his “property and
money without just cause.” He asserts these crimes took
place over a ten year period, and amounted to
“deliberate indifference” towards his
“living needs and subsequent life conditions.”
Plaintiff also claims that defendants' activities
constituted a “scheme of racketeering.”
alleges that in 1995, the previous County Clerk of Perry
County, Randy Taylor, told him that he was “not
entitled to hospitalization or retirement insurance.”
(Docket No. 1-1 at 2). Defendant Kutz told him the same thing
in 2014, 2015, 2016, and 2017. Plaintiff states that he
worked as the Perry County Coroner for twenty-two years, and
that he worked eight hours a day, seven days a week. ...